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.

Page: 67

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.

Page: 71

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, based

on “the papers laid before the undersigned, as well as oral information of the

Minister of the Interior” (to whom Borron had written).¹¹⁷D. Laird, Minister of the

Interior, then advised, on July 12, 1875, that he “concurs in the views expressed

in the annexed report of the Honorable the Minister of Justice” and referred to

¹¹⁶Stage One Reasons, at para. 315.

¹¹⁷Ontario conceded that Blake’s opinion arose from him looking at the documents and at the wording of

the Treaties.

Page: 75

Blake’s opinion that the Anishinaabe were “entitled, under the Treaty of 1850, to

the maximum amount of annuity thereby stipulated, namely $4 per head.” The

resulting federal OIC, which increased the annuities “to the maximum amount of

annuity thereby stipulated, namely, $4.00 per head”, was expressly based on both

Blake’s opinion and Laird’s report. These writers appear to take their

interpretations either directly from the Treaty text, or from one another, not relying

on information about the intentions or interests of the Crown when the Treaty was

formed.

[170] Eight years after his first letter, Dawson wrote again. In his letter to Col. C.

Stuart, dated October 7, 1881, he referred to the “full amount” of the available

annuity, and to the payment of arrears on the $4 amount as providing “the full

benefit of the stipulation throughout the whole period”. He did so based on his own

interpretation of the text and other interpretations he had read. He began his letter

with the words: “By this Treaty … it was stipulated as follows”, before quoting the

augmentation clause. He then continued:

The language is clear and on reference to the official

correspondence, it will be seen that it is nowhere denied,

but on the contrary, admitted on all hands, that from the

time the payment of four dollars per head could have

been made from the revenue of the ceded territory,

without loss to the Government, the Indians were clearly

entitled to have their annuities augmented to that

amount.

Page: 76

Dawson did not base his interpretation, as reflected in either his 1873 or 1881

letters, on any evidence, beyond the Treaty text, as to the interests or intentions of

the Crown at the time of Treaty formation.

[171] Next, on January 9, 1884, Charles Skene, an Indian Agent, recounted his

discussion with Chief Solomon James and other Chiefs. He told them that “$4 was

the utmost sum to be given as annuity”, and their response “was that it is not so”.

He then “referred to the written copy of the Treaty sent to me by the Department”.

Again, it appears likely that his interpretation of the Treaties came from reading the

text. This evidence is equivocal, in any event, since the First Nations

representatives denied the cap.

[172] Ontario argues that the interpretations expressed by these writers are

relevant because, in order to find the Crown intention to have been contrary to

these interpretations, “one would have to accept (in the absence of evidence) that

this interpretation was intended by the Crown at the time of ratification, but then

almost immediately forgotten by the bureaucracy charged with implementing the

Treaties.”

[173] On the contrary, there is no evidence to show, and no reason to believe, that

in the 23 years between the promise being made and the Anishinaabe complaints

that sparked discussion and action, knowledge relevant to the Crown’s intentions

and interests was communicated, discussed, or passed among bureaucrats.

Page: 77

[174] Instead, the evidence suggests that the Treaties were set aside and largely

forgotten for two decades. Only in 1873, when they were faced with complaints,

did the responsible bureaucrats read the augmentation clause and reach their own

understanding of the text. The resulting documents are therefore of very little

probative value in determining what the Crown’s intentions were in 1850.

[175] Ontario points to the 1893 affidavit of Elder John Mashekyash, of

Batchewana First Nation, who was present at the Treaty negotiations. The trial

judge assessed that evidence and concluded that “it would be risky to give much

weight” to it given the frailties of memory and Mashekyash’s presence only in the

Huron negotiations.¹¹⁸She added that his was not evidence of “any widespread

understanding of the Huron Chiefs at the time the Robinson Huron Treaty was

signed.” This assessment was well within the trial judge’s remit.

[176] Finally, Ontario placed particular emphasis on documents relating to the

financial dispute between Canada, Ontario and Quebec regarding responsibility

for the Crown’s annuity obligations. The decisions of the arbitrators in that dispute

were reviewed by the Supreme Court of Canada and the Judicial Committee of the

Privy Council.¹¹⁹The trial judge did not refer to this group of documents, and for

good reason. They provide little, if any, assistance in understanding the Crown’s

¹¹⁸Stage One Reasons, at paras. 307-13.

¹¹⁹Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, aff’d Attorney-General for the

Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199 (J.C.P.C.).

Page: 78

intentions or interests at the time of Treaty formation. The documents exhibit the

frailties of being neither proximate nor connected to Treaty formation. The context

in which they were written calls for particular caution in relying on them.

[177] Vancise J.A. cautioned, in Lac La Ronge, against reading subsequent

conduct “not directly related to the interpretation of the Treaty”, including

“compromise” decisions, as a “demonstration of the intention of the parties at the

time the treaty was negotiated and signed.”¹²⁰Records that were not aimed at

interpreting the augmentation clause must be read with a sensitivity to the context

of the documents and the objectives the writer sought to achieve.

[178] The main issue in dispute in the arbitration was which of Canada, Ontario or

Quebec bore responsibility for paying the Robinson Treaty annuities. The parties

to the arbitration referred to $4 as the “full” or “maximum” amount of the annuity,

and Justice Burbidge, one of the arbitrators, found that “[a]ny increase beyond that

would have been a matter of grace.”¹²¹Neither party raised the possibility that the

$4 stipulation did not cap the annuities. While there might have been “careful

scrutiny” of the augmentation clause in the arbitration, that scrutiny was, on the

part of the paying parties, aimed at advancing each party’s case against the others

¹²⁰Lac La Ronge, at para. 106.

¹²¹Award on Indian Robinson Treaties, Huron and Superior, February 14, 1895 (J.A. Boyd, Sir L.N.

Casault, and G.W. Burbidge), as reproduced in the notes preceding the Supreme Court of Canada’s

judgment on the appeal of the arbitrators’ award: Province of Ontario, at p. 456.

Page: 79

and, on the part of the arbitrators, limited to considering the arguments of the

parties. They were not focused on Anishinaabe entitlements.

[179] There was a lively debate during the arbitration as to whether the $4 per

person limit was based on the Anishinaabe population at the time the Treaties were

signed or on the population at the time the annuity was paid. Mr. Clark, counsel for

Ontario at the arbitration, argued that “it is apparent on the face of the Treaty that

the maximum liability of the Province under that covenant in any event is 1422

[population at the time of Treaty formation], multiplied by 4”, all of which would be

paid to the Chiefs, who then “divided it as they chose”.¹²²

[180] Mr. Clark’s understanding, which differs from the one Ontario now claims to

be self-evident, was earlier expressed by William Spragge in 1873. Spragge’s

report, drafted in response to petitions from the Anishinaabe, referred to $4 as the

“maximum amount per head named in the treaties”. Ontario argues that Spragge,

having been a Crown official since 1847, was aware of the circumstances of the

Treaty negotiations. However, in a letter preceding his report, he gave his opinion

that the annuities were only to be augmented based on the First Nations’

population when the Treaties were signed.¹²³His adoption of this interpretation,

which no party to these appeals currently endorses, significantly undermines the

¹²²Transcripts from the Unsettled Accounts Arbitration, at pp. 365-66.

¹²³Spragge stated, “the Robinson Treaties … do not contemplate that in the event of the annuities being

augmented, the numbers to receive them shall exceed those at which the various bands were estimated

when the treaties were executed.”

Page: 80

value of his report as an aid in interpreting the Treaties. It also suggests that

Spragge had no special knowledge of the Treaty negotiations.

[181] It is also worth noting that, to the opposite effect, some Crown actors

expressed, albeit cautiously, the view that more might be owed to the Anishinaabe.

Dawson, in his 1881 letter, wrote that the sum of the arrears on the $4 annuity,

“although considerable, is not all the Indians may fairly claim or are justly entitled

to”, before referring to the graciousness part of the augmentation clause. He then

referred to other bands who receive a higher annuity and also “carpenters’ tools,

twine for nets, farming implements and cattle.”

[182] On June 17, 1893, E.L. Newcombe, a Deputy Minister, wrote to Lawrence

Vankoughnet, Deputy Superintendent General of Indian Affairs, in reference to the

augmentation clause. Newcombe stated, after quoting from the augmentation

clause:

The portion of the above excerpt to which I wish to have

particular attention called is that which describes the

additional annuity, over and above one pound per caput

which may be paid as “such further sum as Her Majesty

may be pleased to order.” The Department has for some

years past paid the Indians under these treaties $4 per

capita, the mount necessary to enable it to do so having

been voted annually by Parliament, but it is considered

that, owing to the immense revenue derived from the

sales of land and timber within the territory ceded by the

Indians under the above treaties to the Crown, the

amount of annuity might fairly be increased to such

further sum as Her Majesty may be pleased to order.

Page: 81

[183] In response, Vankoughnet stated that “the point to which you refer will not

be lost sight of” but stated also that “it is very questionable whether the provision

in these treaties to which you refer can be made the basis of any legal claim against

the Province of Canada.”

[184] While these documents do not support the trial judge’s interpretation, they

do undermine Ontario’s argument that the post-Treaty evidence demonstrates one

unequivocal understanding of the augmentation clause among Crown officials.

(iii) Conclusion on the Trial Judge’s Treatment of the Evidence

Concerning Crown Intention

[185] The trial judge did not err in her treatment of the evidence of the Crown’s

intentions upon entering the Robinson Treaties or in determining the common

intentions of the Treaty parties.

[186] To be helpful, post-treaty evidence must be capable of shedding light on the

intention or interests of one or more of the parties at the time the treaty was signed.

The extent to which a document does so will depend not only on its contents, but

on its temporal proximity to treaty formation, its connection to treaty negotiations,

and the context in which it was created. Taking these factors into account, the post-

Treaty evidence upon which Ontario relies provides little assistance and the trial

judge did not err in not relying on it.

[187] The documents proximate to Treaty formation on which Ontario relies are

consistent with the trial judge’s interpretation of the augmentation clause. The post-

Page: 82

Treaty evidence, on which Ontario largely focused its submissions, is incapable of

establishing a contrary Crown intention. The trial judge did not make a palpable

and overriding error in her treatment of this evidence.

The Trial Judge Did Not Err in Her Determinations on the Existence

and Extent of Crown Discretion in the Augmentation Clause

[188] Ontario’s second basic argument on the trial judge’s interpretation of the

augmentation clause is that she erred in finding that the Crown’s discretion under

the augmentation clause was not unfettered.

[189] To recall the context, Ontario’s position is that the $4 per person amount

specified in the Treaties is a “hard cap” that fixes both the annuity paid to entitled

individuals and the total amount of the annuity payable. Ontario submits that the

Crown has unfettered discretion as to when and whether it will increase the per

person annuity, and therefore the total annuity paid, beyond the $4 per person cap.

[190] At trial, both Ontario and Canada submitted that the law gave them

“unfettered discretion concerning how they will meet their treaty obligations.”¹²⁴

Canada has not appealed the judgments below. On appeal, Canada agrees with

the trial judge’s finding that the Crown is obliged, under the Treaties, to increase

the annuities beyond $4 per person. Canada now submits that the Crown retains

discretion in fulfilling this obligation but that this discretion is not unfettered.

¹²⁴Stage One Reasons, at para. 562.

Page: 83

[191] We begin by setting out the governing principles concerning the existence

and scope of governmental discretion. We next summarize the trial judge’s

decision concerning Crown discretion and then apply the governing principles to

Ontario’s arguments.

(i)

The Governing Principles Concerning Discretion

[192] In the seminal Baker decision, L’Heureux-Dubé J. noted: “The concept of

discretion refers to decisions where the law does not dictate a specific outcome,

or where the decision-maker is given a choice of options within a statutorily

imposed set of boundaries.”¹²⁵It is now trite law that “there is no such thing as

absolute and untrammelled ‘discretion’”.¹²⁶Where discretion is granted by statute,

that discretion, said L’Heureux-Dubé J., “must be exercised in accordance with the

boundaries imposed in the statute, the principles of the rule of law, the principles

of administrative law, the fundamental values of Canadian society, and the

principles of the Charter.”¹²⁷These boundaries set a reasonable “margin of

manoeuvre” for a decision-maker exercising discretion.¹²⁸

[193] These principles apply with necessary modifications to the exercise of

Crown discretion related to treaties with First Nations. The most significant

constraints on the Crown in the context of this case are the Treaty promises made

¹²⁵Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 52

¹²⁶Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, per Rand J.

¹²⁷Baker, at para. 56.

¹²⁸Baker, at para. 53.

Page: 84

by the Crown, s. 35 of the Constitution Act, 1982, including its reconciliatory

imperative, and the honour of the Crown.

(ii) The Trial Judge’s Treatment of Crown Discretion

[194] The trial judge found that the promise in the augmentation clause to increase

the annuity is not discretionary but mandatory; the $4 cap is only a cap on annual

payments to individuals and does not limit the total annuity payable under the

Treaties; and the Crown has discretion in the implementation of the Treaty

promise, including when and how it provides information to the Anishinaabe to

assess the reasonableness of the Crown’s calculations of net Crown revenues¹²⁹

and whether to raise the $4 cap on the annuity payable to individuals.¹³⁰She

stated: “The discretion is not unfettered and is subject to [judicial] review”, and

noted that Crown discretion in the implementation process “must be exercised

honourably and with a view to fulfilling the Treaties’ promise.”¹³¹

(iii) Ontario’s Arguments

[195] Ontario makes four arguments in support of its position that the power to

increase annuities is unfettered: the first is based on the text of the graciousness

clause and its location in the augmentation clause; the second is that the decision

to increase the annuities is not justiciable; the third is that the trial judge erred in

¹²⁹Stage One Reasons, at paras. 527, 532 and 569.

¹³⁰Stage One Reasons, at para. 454.

¹³¹Stage One Reasons, at para. 4.

Page: 85

her evidentiary finding on the role of discretion in determining the common

intention of the Treaty parties; and the fourth relates to the honour of the Crown.

We address the first three in turn and the honour of the Crown under the second

issue, which follows immediately.

(i)

The Textual Argument

[196] Ontario argues that the phrasing of the graciousness clause in the

augmentation clause is a particularly potent conferral of unfettered discretion on

the Crown. The graciousness clause provides: “or such further sum as Her Majesty

may be graciously pleased to order”. This language evokes the royal prerogative.

Ontario argues that the language of the graciousness clause modifies the entire

augmentation clause, making any increase to the annuity beyond its current level

completely discretionary.¹³²

[197] We disagree for textual reasons and for reasons of principle.

[198] The trial judge’s interpretation of the augmentation clause is consistent with

and is supported by the text of the augmentation clause. The structure of the

augmentation clause makes it clear that the graciousness clause applies only to

the per person annuity, not to the collective annuity. It does not modify the entire

augmentation clause. To see this, it is helpful to depict the structure of the

¹³²This was also Canada’s position before the trial judge, as she noted in her reasons, at para. 382.

Page: 86

augmentation clause in its constituent parts, with some explanatory notes and

emphasis added.

[199] The collective annuity promise comes first:

[F]or 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 …

…

Her Majesty and the Government of this Province, hereby

promises and agrees to make, or cause to be made, the

payments as before mentioned….

[200] The main text of the augmentation clause states:

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 as 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,

[201] Then comes the first proviso, which specifies the amount paid to individuals

and contains the graciousness clause:

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;

[202] Then comes the second proviso followed by the diminution clause:

and provided further that the number of Indians entitled

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

Page: 87

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.

[203] Structurally, the textual breakdown shows plainly that the graciousness

clause does not apply to the entire augmentation clause but only to the first proviso,

which sets the annuity for individuals.

[204] Textually, in terms of the language, Crown compliance with the

augmentation clause is mandatory because the clause expressly states that

“should” the ceded territory produce sufficient revenue to enable increasing the

annuity “without incurring loss”, “then and in that case the same shall be

augmented from time to time”. Up to that point in the text of the augmentation

clause, the only antecedent to which “the same” could relate is the collective

annuity already mentioned, being “the further perpetual annuity of six hundred

pounds of like money”. In our view, because the graciousness clause is part of the

first proviso, it cannot dominate the augmentation clause and reduce its mandatory

wording (“shall be augmented”) into a gratuitous exercise of the Crown’s unfettered

discretion (“such further sum as Her Majesty may be graciously pleased to order”),

as Ontario argues. The graciousness clause applies only to the per person annuity

in the first proviso (“the amount paid to each individual”), which is capped in the

text at $4.

Page: 88

[205] As a matter of principle, there is, in any event, no such thing as an unfettered

discretion, as we have already established.

(ii) Justiciability

[206] To set the context for this issue, we first set out Ontario’s position, next the

governing principles on justiciability, and then apply the principles to Ontario’s

argument.

Ontario’s Position on Justiciability

[207] Ontario invokes the doctrine of justiciability, in part, to reinforce its claim that

Crown discretion under the augmentation clause is unfettered. Ontario attacks the

trial judge’s finding that the augmentation clause requires the Crown to pay a “fair

share” of net Crown resource-related revenues on the basis that “[n]othing in the

historical record suggests that this abstract concept was discussed during the

Treaty negotiations, much less agreed upon.” Accordingly, Ontario argues: “The

absence of common intention on what constitutes a ‘fair share’ also implies that

should the parties fail to reach agreement on this concept, the courts will have to

create a definition in a legal vacuum.” Ontario asserts: “What is ‘fair’ in the abstract,

considered apart from legal principles or common intention, is not a justiciable

question; it is a moral or policy question on which many different views and

perspectives are possible.” The question does not have “a sufficient legal

component to be justiciable.”

Page: 89

[208] Ontario’s argument concludes dramatically:

In defining what is a “fair share” under the judgments

below, the courts would be making policy decisions with

respect to limited Crown finances, thereby entering a field

that Canadian courts have appropriately viewed as being

outside the proper function of the judiciary. In the result,

a Crown discretion to increase annuities has been

replaced in the judgments below by a judicial discretion

in relation to Crown finances that is not grounded in

common intention or legal principles.

The Governing Principles Concerning Justiciability

[209] The doctrine of justiciability imposes limits on judicial review of executive

action. It is based on the sense that there are public policy issues that are beyond

the jurisdiction of the courts. Stratas J.A. noted:

In rare cases … exercises of executive power are

suffused with ideological, political, cultural, social, moral

and historical concerns of a sort not at all amenable to

the judicial process or suitable for judicial analysis. In

those rare cases, assessing whether the executive has

acted within a range of acceptability and defensibility is

beyond the courts’ ken or capability, taking courts beyond

their proper role within the separation of powers.¹³³

¹³³Hupacasath First Nation v. Canada, 2015 FCA 4, 379 D.L.R. (4th) 737, at para. 66. In Hupacasath,

Stratas J.A. found that the application for judicial review was justiciable because, although the challenge

was to the decision to sign an international treaty, the case turned on whether the appellant had certain

legal rights. In Wenham v. Canada (Attorney General), 2018 FCA 199, 429 D.L.R. (4th) 166, at paras. 58-

63, Stratas J.A. addressed justiciability and concluded that a class action seeking to quash a federal

program to compensate victims of Thalidomide on the basis that the documentary proof requirements

were unreasonable was justiciable. In Hupacasath and Wenham, Stratas J.A. followed Operation

Dismantle v. The Queen, [1985] 1 S.C.R. 441.

Page: 90

Examples of such rare cases would include the deployment of military assets,

entering into foreign treaties, and addressing homelessness.

[210] The issue of addressing homelessness was raised in Tanudjaja, where the

court found that there was “no sufficient legal component to engage the decision-

making capacity of the courts”, and that “[i]ssues of broad economic policy and

priorities are unsuited to judicial review.”¹³⁴The application in that case asked the

court “to embark on a course more resembling a public inquiry into the adequacy

of housing policy.”¹³⁵The court noted, “the issue is one of institutional competence

[and] whether there is a sufficient legal component to anchor the analysis” and

concluded that the application was not justiciable.¹³⁶

The Principles Concerning Justiciability Applied

[211] In our view the doctrine of justiciability has no application to this case, for

three reasons. First, here the court is not reviewing executive action in the abstract.

The court’s task is to interpret the augmentation clause in the Treaties in the

context in which they were negotiated. The interpretation and enforcement of treaty

obligations is core judicial business.¹³⁷

¹³⁴Tanudjaja, v. Canada (Attorney General), 2014 ONCA 852, 123 O.R. (3d) 161, at paras. 27, 33, leave

to appeal refused, [2015] S.C.C.A. No. 39.

¹³⁵Tanudjaja, at para. 33.

¹³⁶Tanudjaja, at para. 35.

¹³⁷See Hupacasath First Nation, at para. 70.

Page: 91

[212] Second, Ontario’s justiciability argument does not turn on the language of

the augmentation clause but on the trial judge’s adoption of the expression “fair

share”. However, Ontario’s justiciability argument cannot be based on the result of

the trial judge’s interpretation. Either a question is justiciable or it is not. If it is

justiciable, then the court’s answer might be wrong, but the result cannot logically

convert the question from one that is justiciable into one that is not.

[213] Ontario’s argument must be treated as an assertion that the trial judge erred

in adopting the term “fair share”, not that the interpretation is not justiciable. As we

will explain below, we agree that it was unhelpful for the trial judge to adopt the

concept of “fair share”, but her doing so cannot form the basis of a justiciability

argument.

[214] Third, and relatedly, there is a sense in which Ontario is making an argument

based on the possibly catastrophic impact of a large judgment on the fiscal state

of the Province, thereby reducing its capacity to deal effectively with its other

responsibilities. We draw this inference from the language of Ontario’s factum: “the

courts would be making policy decisions with respect to limited Crown finances,

thereby entering a field that Canadian courts have appropriately viewed as being

outside the proper function of the judiciary.” But this is not what the court is tasked

to do nor what it will do. In the end there might be a financial judgment that Ontario

will have to pay, like any party that is in breach of an agreement. The court is simply

requiring the Crown to comply with the Treaties. Accordingly, Ontario is making an

Page: 92

argument based solely on consequences, which is not a true justiciability

argument.

[215] For these reasons, we do not consider justiciability to be a viable basis on

which to find that the augmentation clause gave the Crown unfettered discretion

over whether and when to increase the annuities.

(iii) The Argument on the Evidence as to the Nature of the Crown’s

Discretion

[216] The trial judge found that the promise in the augmentation clause to increase

the annuity is mandatory, not discretionary, but that the Crown has a measure of

discretion in the implementation of the Treaty promises. Ontario attacks the

evidentiary basis for her finding that the promise to increase the annuity is not

discretionary.

[217] In the course of her reasoning, the trial judge found there to be no historical

record that Robinson explained the notion of discretion to the Anishinaabe. She

stated:

The Robinson Treaties use formal English and legal

terminology. I am not at all convinced that the presence

of interpreters could or should have given Robinson

confidence that the Chiefs understood the concepts of

discretion, royal prerogative, or Her Majesty’s

graciousness, if such concepts had been embedded into

Page: 93

the Treaties. And, therefore, such concepts could not

have informed the common intention of the parties.¹³⁸

[218] Ontario bases its challenge on the last sentence: “such concepts could not

have informed the common intention of the parties.” Ontario asserts that the trial

judge’s finding that discretion was not understood by the Chiefs is inconsistent with

her plain finding that the augmentation clause gave the Crown discretion over

increases to the $4 cap on distribution to individuals and discretion in

implementation. Read literally, that sentence (“such concepts could not have

informed the common intention of the parties”) would mean that no element of the

Treaties could engage the Crown’s discretion because Crown discretion did not

form part of the common intention of the Treaty parties.

[219] Seeking to avoid the risk that such a reading would pose to its argument that

the Crown has plenary discretion under the Treaties, Ontario essentially makes a

two-step argument. The first step is that the trial judge was palpably wrong and

Robinson successfully conveyed the concept of Crown discretion at the Treaty

Council. The second step is that Crown discretion, the meaning of which Robinson

correctly conveyed and which then formed part of the common intention of the

parties, was unfettered. We agree with the first step, but Ontario’s argument falters

at the second.

¹³⁸Stage One Reasons, at para. 447 (emphasis added).

Page: 94

[220] Relevant to the first step, Ontario submits that the concept of discretion in a

leader is not inherently difficult to explain, that there were interpreters and advisers

at Treaty Council who were not Crown actors, and that the evidence from Elder

Rita Corbiere, a contemporary witness, contradicts the trial judge’s assertion that

the Anishinaabe would not have understood the concept of discretion. We agree

that Robinson is likely to have conveyed, and the Anishinaabe are likely to have

understood, the concept of discretion.

[221] However, this is not a palpable and overriding error that undermines the trial

judge’s interpretation. Instead, in our view, the correct analysis is simple: the trial

judge simply misspoke. What she meant to say was not, “such concepts could not

have informed the common intention of the parties” but instead, “such concepts of

unfettered discretion could not have informed the common intention of the parties.”

Most obviously, in light of her numerous references to ongoing Crown discretion,

the trial judge did not intend to exclude all Crown discretion, just unfettered

discretion.

[222] This reading of the trial judge’s reasons is supported by the record. In its

written closing submissions on the motions, under the heading “Common

Intention”, Ontario argued that Robinson would not have understood the

augmentation clause as creating an obligation to increase annuities beyond an

Page: 95

amount equal to $4 per person under any circumstances.¹³⁹Because Robinson

was motivated to accurately communicate the meaning of the Treaties at Treaty

Council, he took steps through skilled interpreters to explain the Treaties so as to

avoid any misunderstanding. Ontario argued that he was successful in doing so.

Ontario pointed to Robinson’s statement, in his Treaty Report, that he “had no

difficulty in making [the Anishinaabe] comprehend” the augmentation clause.

Ontario argued that Robinson was better placed than anyone alive today to assess

whether he had successfully communicated the meaning of the augmentation

clause.

[223] The trial judge asked: “What can we take from Robinson’s many references

in his diary and Official Report that the Chiefs were satisfied after the Treaties were

read out, interpreted and explained to them?”¹⁴⁰Contextually, we read this section

of the trial judge’s reasons as her response to Ontario’s arguments that Robinson’s

supposed understanding of the augmentation clause – that the Crown’s discretion

to augment was unfettered – should be assumed to have been communicated

successfully to the Anishinaabe.

¹³⁹See Ontario’s Written Closing Submissions in Stage One Trial, Exhibit MM, pp. 206-10. We have

rejected this argument on Robinson’s understanding of the augmentation clause at paras. 140-43 of

these reasons.

¹⁴⁰Stage One Reasons, at para. 438.

Page: 96

[224] The trial judge noted Ontario’s submission that “the Anishinaabe had the

benefit of multiple interpreters who were skilled cross-cultural translators.”¹⁴¹

According to one expert, the interpreters at the Treaty Council “were a genuine

part of the multicultural world of the upper Great Lakes region.” The trial judge

accepted that the interpreters explained the “shall not exceed £1” provision in the

augmentation clause and that there is no record of any complaints.¹⁴²She added:

“There is no record of Robinson himself explaining the ‘cap’, the notion of

discretion, or royal prerogative.”¹⁴³

[225] The trial judge then described the difficulties of interpreting legal terms to lay

people and the large cultural gap between the Treaty parties, before making the

comments, quoted earlier, in which Ontario claims she erred.

[226] Contextually, however, in making these comments, the trial judge is best

understood to be noting that the fact that the augmentation clause was interpreted

or explained to the Anishinaabe does not mean they would have understood

discretion in the augmentation clause as operating in the manner Ontario now

claims, that is, as an unfettered Crown discretion, “not subject to any defined set

of factors”, over increases beyond $4 per person.¹⁴⁴

¹⁴¹Stage One Reasons, at para. 439.

¹⁴²Stage One Reasons, at para. 442.

¹⁴³Stage One Reasons, at para. 442.

¹⁴⁴Ontario’s Written Closing Submissions in Stage One Trial, Exhibit MM, at para. 369.

Page: 97

[227] The trial judge cited Elder Corbiere’s testimony “that the Anishinaabe lived

with notions of what they expected of their leaders: to be generous, to live in a

good way, to do right by the people.”¹⁴⁵Elder Corbiere’s testimony strongly

suggested that the Anishinaabe would not have understood sole or unfettered

discretion in a leader, which is the form of discretion that Ontario argues was

embedded in the augmentation clause and successfully communicated to the

Anishinaabe. This concept, of a leader choosing to act arbitrarily without regard for

the needs, requests, or expectations of others, could not have been communicated

to the Anishinaabe because it is not consistent with Anishinaabe conceptions of

leadership or their expectations of the Crown. It is therefore unlikely to have been

what the Anishinaabe understood from an interpretation and explanation of the

augmentation clause.

[228] The trial judge was entitled to rely on this evidence and to draw from it the

inference that the Anishinaabe could not have understood the concept of a leader

exercising discretion arbitrarily because it would have been incomprehensible to

the Anishinaabe that a leader, including the Queen, would assert unfettered

discretion, and be empowered to act in a manner unbound by the principles

described by Elder Corbiere.¹⁴⁶The trial judge did not accept that the Anishinaabe

¹⁴⁵Stage One Reasons, at para. 446.

¹⁴⁶This kind of discretion is equally incomprehensible in Canadian law, as explained at paras. 192-93 of

these reasons.

Page: 98

would have understood the augmentation clause as permitting the Crown to refuse

to increase the annuity after it reached the equivalent of $4 per person, no matter

the revenues produced by the land.

[229] The trial judge did not err in assessing the Anishinaabe understanding of

Crown discretion. Her findings on common intention and her interpretation of the

augmentation clause to the effect that Crown discretion was not unfettered were

not based on Elder Corbiere’s statements alone, but on a careful examination of

the historical and cultural context in which the Treaties were negotiated and

signed. This was completely within the trial judge’s remit and we do not discern an

error.

[230] The trial judge did not err in her analysis of the form and content of the

Crown’s discretion, or the First Nation’s understanding of the scope of that

discretion, contrary to Ontario’s argument.

C.

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] We begin with the governing principles, next set out the trial judge’s reasons,

the positions of Ontario and Canada, and then our analysis. The context is set by

Ontario’s position that, in the circumstances, the honour of the Crown is procedural

only and does not give rise to fiduciary duties to the Treaty First Nations.

Page: 99

(1) The Governing Principles Concerning the Honour of the Crown

[232] The honour of the Crown has been recognized as a legal principle applying

to treaties since at least 1895,¹⁴⁷but its roots are far deeper.¹⁴⁸It is historically

linked to the Royal Proclamation of 1763 (the “Royal Proclamation”)¹⁴⁹and

engaged by s. 35 of the Constitution Act, 1982.¹⁵⁰In Haida Nation, McLachlin C.J.

explained:

The historical roots of the principle of the honour of the

Crown suggest that it must be understood generously in

order to reflect the underlying realities from which it

stems. In all its dealings with Aboriginal peoples, from the

assertion of sovereignty to the resolution of claims and

the implementation of treaties, the Crown must act

honourably. Nothing less is required if we are to achieve

“the reconciliation of the pre-existence of aboriginal

societies with the sovereignty of the Crown”….¹⁵¹

[233] We repeat McLachlin C.J.’s strong statement: “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.”¹⁵²The honour of the Crown is “always at stake” in the Crown’s

¹⁴⁷Marshall, at para. 50.

¹⁴⁸Thomas Isaac, in Aboriginal Law, 5th ed. (Thomson Reuters: Toronto, 2016), at p. 341, discusses two

cases, dating back to 1608 and 1613, where the “King’s honour” was applied to disputes outside the

Aboriginal law context: St. Saviour in Southwark (Churchwardens case) (1613), 77 E.R. 1025 (Eng. K.B.);

and Rutland’s (Earl) Case (1608), 77 E.R. 555 (Eng. K.B.).

¹⁴⁹Manitoba Metis, at para. 66, per Abella J.; Little Salmon, at para. 42; and Mikisew Cree (2018), at

para. 21.

¹⁵⁰Haida Nation, at para. 32; Manitoba Metis, at paras. 58-59, per Abella J.

¹⁵¹Haida Nation, at para. 17 (citations omitted).

¹⁵²Haida Nation, at para. 45.

Page: 100

dealings with Aboriginal people.¹⁵³According to McLachlin C.J., this statement “is

not a mere incantation, but rather a core precept that finds its application in

concrete practices.”¹⁵⁴

[234] The honour of the Crown “infuses” the process of treaty interpretation,¹⁵⁵

and is “an important anchor”.¹⁵⁶Further: “The Crown’s honour cannot be

interpreted narrowly or technically, but must be given full effect in order to promote

the process of reconciliation mandated by s. 35(1).”¹⁵⁷The honour of the Crown

gives rise to justiciable duties.¹⁵⁸While not a cause of action in itself, ¹⁵⁹the honour

of the Crown can also be the subject of a declaration.¹⁶⁰

[235] Brian Slattery argues that in Haida Nation and Taku River, “we witness the

emergence of a new constitutional paradigm governing Aboriginal rights” built

around the doctrine of the honour of the Crown.¹⁶¹In his book, The Honour and

Dishonour of the Crown: Making Sense of Aboriginal Law in Canada,

Jamie D. Dickson makes an extended argument that since Haida Nation, the

doctrine of the honour of the Crown has begun to displace fiduciary duty as the

¹⁵³Marshall, at paras. 49, 51, per Binnie J. This statement is repeated often. The Supreme Court of

Canada used the phrase most recently in Newfoundland and Labrador (Attorney General) v.

Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, at para. 22.

¹⁵⁴Haida Nation, at para. 16; and see Manitoba Metis, at paras. 73-74.

¹⁵⁵Haida Nation, at para. 19.

¹⁵⁶Little Salmon, at para. 42.

¹⁵⁷Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004]

3 S.C.R. 550, at para. 24.

¹⁵⁸Manitoba Metis, at para. 73.

¹⁵⁹Manitoba Metis, at para. 73.

¹⁶⁰Manitoba Metis, at para. 143; Mikisew Cree (2018), at para. 47.

¹⁶¹Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29 S.C.L.R. (2d) 433, at p. 436.

Page: 101

principal means by which the court assesses Crown actions under treaties. He

states:

[T]he fundamental conceptualisation of Crown

obligations in Aboriginal contexts was entirely reset upon

(a) explicitly, the core principle that the Crown is legally

mandated to always act honourably in its dealings with

Aboriginal peoples, and (b) implicitly, the notion that the

regulation of the mischief of Crown dishonour involving

Aboriginal peoples is the predominant, if not the

exclusive, function of Aboriginal law.¹⁶²

[236] The caselaw bears out Dickson’s prediction, flowing from Haida Nation, that

in giving content to sparsely defined treaty promises courts will utilize the doctrine

of the honour of the Crown, not fiduciary duty. He notes:

As the doctrinal anchor of Aboriginal law — as it was

described by Justice Binnie in Little Salmon/Carmacks —

the honour of the Crown principle describes the core

mandate of this area of law — that the Crown is to act

honourably in its dealings with Aboriginal peoples — and

operates to give rise to specific and enforceable

obligations, the breach of which by the Crown violates the

anchor principle.¹⁶³

[237] In Mikisew Cree (2018), Karakatsanis J. noted:

This Court has repeatedly found that the honour of the

Crown governs treaty making and implementation, and

requires the Crown to act in a way that accomplishes the

intended purposes of treaties and solemn promises it

¹⁶²Jamie D. Dickson, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in

Canada (Saskatoon: Purich Publishing Limited, 2015), at p. 10. Abella J. cited Dickson, in Mikisew Cree

(2018), at para. 71, for the proposition that “Haida Nation established a new legal framework in which to

understand the government’s obligations towards Indigenous peoples, organized around the principle of

the honour of the Crown.”

¹⁶³Dickson, at pp. 20-21.

Page: 102

makes to Aboriginal peoples…. Treaty agreements are

sacred; it is always assumed that the Crown intends to

fulfill its promises. No appearance of “sharp dealing” will

be permitted….¹⁶⁴

[238] In Haida Nation, McLachlin C.J. pointed out that: “The honour of the Crown

gives rise to different duties in different circumstances.”¹⁶⁵In Manitoba Metis,

McLachlin C.J. and Karakatsanis J. note that “[w]hat constitutes honourable

conduct will vary with the circumstances”, and that “the duty that flows from the

honour of the Crown varies with the situation in which it is engaged.”¹⁶⁶The

incidents of the honour of the Crown that may apply include “a fiduciary duty when

the Crown assumes discretionary control over a specific Aboriginal interest”.¹⁶⁷It

is instructive that in Manitoba Metis the court found that the honour of the Crown

did not give rise to a fiduciary duty¹⁶⁸even though the honour of the Crown was

breached.¹⁶⁹

[239] As an example of the more nuanced approach, McLachlin C.J. noted in

Haida Nation that:

[W]hile the Crown’s fiduciary obligations and its duty to

consult and accommodate share roots in the principle

that the Crown’s honour is engaged in its relationship

with Aboriginal peoples, the duty to consult is distinct

¹⁶⁴Mikisew Cree (2018), at para. 28 (citations omitted).

¹⁶⁵Haida Nation, at para. 18.

¹⁶⁶Manitoba Metis, at para. 74.

¹⁶⁷Manitoba Metis, at para. 73(1).

¹⁶⁸Manitoba Metis, at para. 64.

¹⁶⁹Manitoba Metis, at para. 133.

Page: 103

from the fiduciary duty that is owed in relation to particular

cognizable Aboriginal interests.¹⁷⁰

[240] The most common cases in which the court has imposed fiduciary duties on

the Crown as an incident of its honour are those where the Crown controls the

disposition of reserve property, including the taking up of reserve lands or lands

subject to a treaty. Examples include Guerin, Grassy Narrows, and Southwind.¹⁷¹

There are also cases where the court did not rely on fiduciary duty in which the

complaint was that the Crown had not given full effect to a treaty, including

Marshall, or had not complied with the duty to consult.¹⁷²

[241] The honour of the Crown demands the purposive interpretation of treaties

by the courts and by the Crown.¹⁷³The Crown must act “diligently in pursuit of its

solemn obligations and the honourable reconciliation of Crown and Aboriginal

interests”¹⁷⁴and “diligently pursue implementation” of treaty promises¹⁷⁵in order

to achieve their intended purposes.¹⁷⁶This duty of diligent implementation is

“narrow and circumscribed”.¹⁷⁷Like the duty to consult, it is distinct from fiduciary

duties. To fulfil the duty of diligent implementation, “Crown servants must seek to

¹⁷⁰Haida Nation, at para. 54. See also Mikisew Cree (2005), at para. 51.

¹⁷¹Guerin v. The Queen, [1984] 2 S.C.R. 335; Grassy Narrows First Nation v. Ontario (Natural

Resources), 2014 SCC 48, [2014] 2 S.C.R. 447; and Southwind v. Canada, 2021 SCC 28, 459 D.L.R.

(4th) 1.

¹⁷²On the duty to consult, see Haida Nation, at para. 54, and Mikisew Cree (2005), at para. 51.

¹⁷³Manitoba Metis, at para. 76

¹⁷⁴Manitoba Metis, at para. 78.

¹⁷⁵Manitoba Metis, at para. 97, and see para. 75.

¹⁷⁶Manitoba Metis, at para. 73(4); Mikisew Cree (2018), at para. 28.

¹⁷⁷Manitoba Metis, at para. 81.

Page: 104

perform the obligation in a way that pursues the purpose behind the promise.”¹⁷⁸

Implementation need not be perfect, but “a persistent pattern of errors and

indifference that substantially frustrates the purposes of a solemn promise may

amount to a betrayal of the Crown’s duty to act honourably in fulfilling its

promise.”¹⁷⁹

[242] These are the duties that arise from the honour of the Crown in relation to

the promises made in the Robinson Treaties. The question then becomes whether

the concept of fiduciary duty has any work to do that is not done by the honour of

the Crown and its duty of diligent implementation. We address this question below.

(2) The Trial Judge’s Reasons

[243] The trial judge stated:

The honour of the Crown requires that the Crown fulfil

their treaty promises with honour, diligence, and integrity.

The duty of honour also includes a duty to interpret and

implement the Treaties purposively and in a liberal or

generous manner. The Defendants accept this

characterization of their duties.¹⁸⁰

[244] She added immediately: “As I have found, there is also an ad hoc fiduciary

duty on the part of the Crown.”¹⁸¹The trial judge often linked the honour of the

Crown and fiduciary duties in her reasons without making any distinction between

¹⁷⁸Manitoba Metis, at para. 80.

¹⁷⁹Manitoba Metis, at para. 82.

¹⁸⁰Stage One Reasons, at para. 538.

¹⁸¹Stage One Reasons, at para. 538.

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the two.¹⁸²The issue was squarely raised in argument¹⁸³but she sidestepped it,

taking the view that it was not necessary to decide which of the honour of the

Crown or fiduciary duty “has primacy over the other.”¹⁸⁴Her concern appears to

be to leave open the possibility of equitable damages.¹⁸⁵

[245] Finally, the trial judge noted: “Whether the Crown has consistently fulfilled

its duties to purposively and diligently interpret and implement the Treaties or

whether the Crown has breached its duties are not Stage One issues.”¹⁸⁶But she

overcame this diffidence, making several strong statements:

Since 1850 the Crown has acted with unfettered

discretion in their interpretation and implementation of

the Treaties, in a way that has seriously undermined their

duty of honour. This left the Treaties’ promise completely

forgotten by the Crown.¹⁸⁷

It seems to me that the real problem is not so much that

the financial circumstances changed in the 168 years

since the Treaties were signed; the real problem is that

the augmentation promise was ignored for that entire

period.¹⁸⁸

[N]or should the Crown benefit from their neglect of the

Treaties’ provisions for over 150 years and thereby

escape their obligation of honourable implementation of

the Treaties’ terms. At the implementation stage, the

Crown is obliged, by virtue of the doctrine of the honour

¹⁸²Stage One Reasons, at paras. 3, 355, 369, 374 and 499.

¹⁸³Stage One Reasons, at paras. 500-2.

¹⁸⁴Stage One Reasons, at para. 505, citing Peter Ballantyne Cree Nation v. Canada (Attorney General),

2016 SKCA 124, 485 Sask. R. 162, leave to appeal refused, [2017] S.C.C.A. No. 95.

¹⁸⁵Stage One Reasons, at para. 504.

¹⁸⁶Stage One Reasons, at para. 393.

¹⁸⁷Stage One Reasons, at para. 495.

¹⁸⁸Stage One Reasons, at para. 587.

Page: 106

of the Crown, to purposively interpret and implement the

Treaties’ terms.¹⁸⁹

(3) The Position of Ontario on the Honour of the Crown

[246] Ontario makes two arguments concerning the honour of the Crown. The first

is linked to its primary argument that the Crown has unfettered discretion to

augment the annuities or to decline to do so. Consistent with that position, Ontario

asserts that in exercising its discretion under the aegis of the honour of the Crown,

the Crown has only procedural duties, which Ontario sets out in four propositions:

 the Crown must engage in the exercise of the discretion upon request by a

Treaty First Nation, and from time to time in any event;

 the Crown should engage honourably with the Treaty First Nations in the

exercise of the discretion, meaning that the process the Crown chooses to

follow must uphold the honour of the Crown, and can be challenged on the

basis that it failed to do so;

 the Crown must engage with Treaty First Nations in relation to the analysis

of net Crown resource-based revenues, including providing sufficient

information to allow them to independently assess the analysis performed

by the Crown; and

 an honourable process includes providing Treaty First Nations with an

explanation of any decision reached, though this would not require formal

reasons.

[247] Ontario’s second argument is that the honour of the Crown does not require

the imposition of fiduciary duties on the Crown respecting these Treaties and that

the trial judge erred in imposing them.

¹⁸⁹Stage One Reasons, at para. 589.

Page: 107

(4) The Position of Canada on the Honour of the Crown

[248] Canada did not appeal the judgment and agrees that the Crown has Treaty

obligations “to increase the promised annuity payments from time to time if Crown

resource-based revenues from the Treaties’ territories permit.” Canada submits

that the Crown “retains discretion with respect to the implementation and fulfilment

of those obligations; but its discretion is not unfettered” and is subject to judicial

review. The constraints include the terms of the Treaties, the duty of purposive

treaty interpretation, the honour of the Crown, and the reconciliatory imperative of

s. 35 of the Constitution Act, 1982. Canada did not address the relationship

between the honour of the Crown and fiduciary duties.

(5) The Principles Concerning the Honour of the Crown Applied

[249] The trial judge stated that the honour of the Crown requires the Crown to

fulfil the Treaty promises with honour, diligence, and integrity, including the duty to

interpret and implement the Treaties purposively and in a liberal or generous

manner.¹⁹⁰This is consistent with the authorities.

[250] The trial judge correctly found that “the Crown has a mandatory and

reviewable obligation to increase the Treaties’ annuities when the economic

circumstances warrant.”¹⁹¹She specified that: “The economic circumstances will

¹⁹⁰Stage One Reasons, at para. 538.

¹⁹¹Stage One Reasons, at para. 3.

Page: 108

trigger an increase to the annuities if the net Crown resource-based revenues

permit the Crown to increase the annuities without incurring a loss.”¹⁹²This is the

core Treaty promise that must now be diligently implemented by virtue of the

honour of the Crown.

[251] Consequently, we would not accept Ontario’s argument that, in this case,

the honour of the Crown can be reduced to a series of procedural requirements.

Where the honour of the Crown is involved, “fairness to the Indians is a governing

consideration.”¹⁹³As Thomas Isaac notes, “[t]he notion of fairness in interpretation

seemed to indicate, even at a relatively early stage, that the honour of the Crown

was meant to ensure just outcomes, rather than solely procedural fairness.”¹⁹⁴

[252] We agree with Ontario that the honour of the Crown does impose procedural

requirements at least equal to those Ontario proposes. We would not go further in

specifying these procedural requirements. They are properly the subject of rulings

to be made in Stage Three of these proceedings.

[253] However, these procedural requirements are not all that the honour of the

Crown requires. The honour of the Crown, together with s. 35, requires that the

Crown diligently implement the Treaty promise. This is the standard against which

¹⁹²Stage One Reasons, at para. 3.

¹⁹³R. v. Agawa (1988), 53 D.L.R. (4th) 101 (Ont. C.A.), at p. 120, leave to appeal refused, [1988]

S.C.C.A. No. 501.

¹⁹⁴Isaac, at p. 344.

Page: 109

the Crown’s incidental discretionary decisions in the implementation process are

to be assessed. All of those decisions are subject to judicial review. The relevant

question, on review, will be: “Viewing the Crown’s conduct as a whole in the context

of the case, did the Crown act with diligence to pursue the fulfillment of the

purposes” of the Treaty promise?¹⁹⁵

[254] We turn to the issue the trial judge declined to resolve, which she expressed

as which of honour of the Crown or fiduciary duty “has primacy over the other.”¹⁹⁶

With respect, the honour of the Crown and fiduciary duty are not in competition.

The honour of the Crown can give rise to fiduciary duties in circumstances where

such duties are necessary and appropriate.

[255] The trial judge found the imposition of a fiduciary duty necessary, in part, to

ensure the availability of equitable remedies. She noted that, in addition to the

obligations imposed by the honour of the Crown, “a finding of a fiduciary duty may

impose additional duties on the Crown, as well as open up an array of equitable

remedies.”¹⁹⁷These are remedies that, the trial judge suggested, “at this time are

not available under the principle of the honour of the Crown.”¹⁹⁸She found that the

¹⁹⁵Manitoba Metis, at para. 83.

¹⁹⁶Stage One Reasons, at para. 505.

¹⁹⁷Stage One Reasons, at para. 499.

¹⁹⁸Stage One Reasons, at para. 504.

Page: 110

question of fiduciary duties could not “be ignored because a different model may

be developed at some future point.”¹⁹⁹

[256] In the particular circumstances, does the concept of fiduciary duty have any

work to do that is not already being done by honour of the Crown? In Peter

Ballantyne Cree Nation, the Court of Appeal for Saskatchewan endorsed Dickson’s

view, set out above, that “the generalized fiduciary obligation (in form, a principle

that calls for honourable conduct) has been largely replaced by the honour of the

Crown principle which effectively mandates the same thing.”²⁰⁰We agree.

[257] The “different model” to which the trial judge refers appears to be the honour

of the Crown and the duty of diligent implementation. While the duty of diligent

implementation has received only recent and isolated application as a basis for

remedies in the treaty context,²⁰¹it “is not a novel addition to the law” and is

“recognized in many authorities”.²⁰²Where the duty is breached, a court may order

remedies aimed at ensuring that the Crown fulfills its treaty promises.

[258] We agree with Hourigan J.A. that fiduciary duty has no work to do in this

case that cannot be done by honour of the Crown alone. The development of the

¹⁹⁹Stage One Reasons, at para. 505.

²⁰⁰Peter Ballantyne Cree Nation, at para. 83, citing Dickson, at p. 91.

²⁰¹See e.g., Watson v. Canada, 2020 FC 129 (in which only declaratory relief was granted); Yahey. v.

British Columbia, 2021 BCSC 1287; and Manitoba Metis, which concerned constitutional obligations

contained in the Manitoba Act, 1870, S.C. 1870, c. 3, rather than a treaty promise.

²⁰²Manitoba Metis, at para. 81.

Page: 111

doctrine counsels against imposing fiduciary duties where they are not required,

and they are not required in this case.

D.

ISSUE THREE: DID THE TRIAL JUDGE ERR IN FINDING THERE WAS

NO IMPLIED TERM FOR THE INDEXATION OF THE ANNUITIES?

[259] Ontario submits that the trial judge erred in refusing to accept that the

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

impact of inflation. Ontario argues that, although the Treaties do not contain any

legally enforceable obligation to increase the annuities beyond a contractual $4

per person “cap”, applying the common-law test for implication of contractual

terms, so as to add a proviso indexing that cap, would restore the purchasing

power intended by the Treaty partners and would be consistent with the honour of

the Crown. Canada takes the position that the trial judge was correct in declining

to imply such a term. The Huron and Superior Plaintiffs see no need to imply

indexing if the Treaties oblige the Crown to increase the annuity from time to time,

when the revenues generated by the ceded lands permit the Crown to do so

without incurring a loss.

(1) The Trial Decision on Indexation

[260] As noted, the Treaties provide that the annuity “… 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” (emphasis added).

Page: 112

[261] At trial, Ontario pleaded that “one pound Provincial currency”, equivalent to

$4, should be indexed to mitigate inflation but, as discussed, took the position that

this sum was a “cap” and that it has no obligation other than to consider

augmenting the individual annuity over this indexed amount. The precise inflation-

adjusted value of the cap would be left for the trial judge to determine at Stage

Three of these proceedings. On appeal, Ontario acknowledges that an inflation-

adjusted cap would be relevant both to Ontario and Canada’s continuing

obligations under the Treaties and to any calculation of damages.

[262] Both the Huron and Superior Plaintiffs agreed that “one pound Provincial

currency” should be indexed, but only if their principal argument – that the Treaties

oblige the Crown to increase a collective annuity in step with increases to territorial

revenue – were to fail. Canada took the position that, given inflation was unknown

in 1850, the parties would not have turned their minds to the question of indexation

and, thus, implying a term would be inappropriate.

[263] The trial judge was not persuaded that the parties would have agreed to an

indexation clause, had the then-unknown concept of persistent inflation and

erosion of purchasing power been explained to them at the time of the Treaties.²⁰³

This was just one of many unforeseen changes affecting the Treaty partners over

²⁰³Stage One Reasons, at para. 594.

Page: 113

the following 170 years.²⁰⁴She observed that the Treaties contained both an

augmentation clause and a diminution clause, intended by the parties to deal with

changing circumstances.²⁰⁵The Robinson Treaties were unique in providing for an

augmentation of the annuities which, she found, were linked to increases in the

territorial revenue and which would thereby adjust the future value of the

annuities.²⁰⁶She accordingly refused to imply a Treaty term for indexation of the

annuities but noted that “[i]n treaties without an augmentation provision, different

considerations could quite possibly result in different responses to this claim.”²⁰⁷

(2) Analysis

[264] There is no doubt that courts may imply terms into treaties on the basis of

the presumed intentions of the parties, where necessary to give effect to treaty

promises or where doing so meets the “officious bystander test”. In Marshall, the

accused – a Mi’kmaq man – was charged with offences under federal fishery

regulations. He asserted a treaty right to fish. The treaty contained a Mi’kmaq

promise not to trade any commodities except with the managers of certain trading

posts, known as truckhouses, or persons appointed by the Crown. The treaty did

not contain any reference to a continued right to fish.

²⁰⁴Stage One Reasons, at para. 586.

²⁰⁵Stage One Reasons, at para. 592.

²⁰⁶Stage One Reasons, at para. 596.

²⁰⁷Stage One Reasons, at para. 597.

Page: 114

[265] Binnie J. observed:

Here, if the ubiquitous officious bystander had said, “This

talk about truckhouses is all very well, but if the Mi’kmaq

are to make these promises, will they have the right to

hunt and fish to catch something to trade at the

truckhouses?”, the answer would have to be, having

regard to the honour of the Crown, “of course”.²⁰⁸

[266] And further:

This was not a commercial contract. The trade

arrangement must be interpreted in a manner which

gives meaning and substance to the promises made by

the Crown. In my view, with respect, the interpretation

adopted by the courts below left the Mi’kmaq with an

empty shell of a treaty promise.²⁰⁹

[267] The court concluded the treaty at issue, in restricting the trade of fish, implied

a continued right to fish in a manner sufficient to produce a moderate livelihood.

As Binnie J. put it, “nothing less would uphold the honour and integrity of the Crown

in its dealings with the Mi’kmaq people to secure their peace and friendship”.²¹⁰

[268] In the commercial context, courts will consider whether an implied term is

“necessary to give business efficacy” to the agreement.²¹¹As noted in Energy

Fundamentals Group Inc.:

Implication of a contractual term does not require a

finding that a party actually thought about a term or

²⁰⁸Marshall, at para. 43.

²⁰⁹Marshall, at para. 52.

²¹⁰Marshall, at para. 4.

²¹¹Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, 388 D.L.R. (4th) 672, at para. 34,

quoting Attorney General of Belize & Ors v. Belize Telecom Ltd & Anor, [2009] UKPC 10, [2009] 2 All

E.R. 1127, at para. 22.

Page: 115

expressly agreed to it. Often terms are implied to fill gaps

to which the parties did not turn their minds….

On the other hand, a court will not imply a term that

contradicts the express language of the contract or is

unreasonable….²¹²

Courts will generally not imply a term where the agreement’s language addresses

the particular contingency addressed by the proposed implied term.

[269] In this case, the trial judge was correct to reject the proposal to imply an

indexing term in the face of the parties’ choice, in the Treaties, to link increases in

the annuities to the revenues generated by the ceded lands. There is no basis to

supplant the augmentation clause with a judicially created indexing term which,

over 170 years, could produce widely different results, particularly given the

various possible formulae for indexation.

[270] Here, the Treaty beneficiaries are not left with “an empty shell of a treaty

promise” in the absence of the proposed implied term.²¹³As we explain elsewhere,

the Huron and Superior Plaintiffs retain a meaningful and enforceable Treaty right,

subject to substantive judicial review, that accommodates the risk of inflation. The

honour and integrity of the Crown demand that it uphold this promise, not the

implied promise Ontario advances in its stead.

²¹²Energy Fundamentals Group Inc., at paras. 35-36.

²¹³Marshall, at para. 52.

Page: 116

E.

ISSUE FOUR: DID THE TRIAL JUDGE ERR IN HER APPROACH TO

REMEDIES?

[271] We begin with several observations to set the remedial context facing the

trial judge. First, the trial judge cited the patent deficiencies and omissions in these

historical Treaties. Even though they were meant to establish relationships in

perpetuity, the Treaties are “lean on details.”²¹⁴The trial judge noted that:

[T]he Treaties do not prescribe a protocol or a guide for

the mechanics of implementing this promise (i.e. the

frequency, method, or factors to be considered, the

corresponding duties that arise, or the scope or limits of

review). Therefore, while it is not controversial that the

duties flowing from the honour of the Crown bind the

Crown (irrespective of the nature of the promise), the

specific duties that arise in this case are undefined on the

face of the Treaties.²¹⁵

[272] The trial judge observed that because the Treaties are perpetual, they “are

not frozen at the date of signature.”²¹⁶But the lack of any effort to implement the

augmentation clause in the Robinson Treaties, apart from the increase to the

annuities in 1875, has resulted in a lack of guidance for future implementation:

The annuities were last increased in 1875. Therefore,

regrettably, there is no set protocol, mechanism, or

precedent for the process of considering increases to the

annuities. Hence, the court and the parties must return to

the shared goals, expectations, and understandings of

the parties in 1850 and, based on those shared goals,

expectations, and understandings, devise processes and

²¹⁴Stage One Reasons, at para. 399.

²¹⁵Stage One Reasons, at para. 349 (emphasis in the original).

²¹⁶Stage One Reasons, at para. 324(9).

Page: 117

procedures for the implementation of the Treaties’

promise in the modern era.²¹⁷

[273] Binnie J. commented in Little Salmon:

The historical treaties were typically expressed in lofty

terms of high generality and were often ambiguous. The

courts were obliged to resort to general principles (such

as the honour of the Crown) to fill the gaps and achieve

a fair outcome.²¹⁸

[274] Second, the trial judge expressed dismay at the positions taken in this

litigation by Ontario and Canada,²¹⁹implicitly echoing McLachlin C.J.’s comment

in Taku River that “[t]he Province’s submissions present an impoverished vision of

the honour of the Crown and all that it implies.”²²⁰The trial judge noted that “both

Ontario and Canada reject the proposition that they have duties of disclosure or

consultation in the implementation process.”²²¹This hard position, she said, “flies

in the face” of Supreme Court authority on the honour of the Crown, leading her to

note that: “The duty of honour must find its application in concrete practices and in

legally enforceable duties.”²²²Those duties include both a duty to consult and a

duty to disclose at least “sufficient information to allow the parties to calculate net

Crown resource revenues.”²²³

²¹⁷Stage One Reasons, at para. 536.

²¹⁸Little Salmon, at para. 12.

²¹⁹Stage One Reasons, at paras. 492-94.

²²⁰Taku River, at para. 24.

²²¹Stage One Reasons, at para. 563.

²²²Stage One Reasons, at para. 567.

²²³Stage One Reasons, at paras. 570, 571, and see para. 572, in which the trial judge notes that a better

definition of the contents of the duty to consult must be left to another stage in the litigation.

Page: 118

[275] Third, these observations about the recalcitrance of both Ontario and

Canada²²⁴led the trial judge to doubt the prospect of successful negotiations:

However, when negotiation fails to achieve a resolution

or if the Crown refuses to negotiate, the Treaties’

beneficiaries are entitled to ask for judicial intervention.

And if the Treaties’ beneficiaries issue a claim after 168

years of no action on the part of the Crown, the court

cannot simply accept the Crown’s acknowledgment of

their duty of honour and permit the Crown to carry on

without further direction.²²⁵

[276] The trial judge went on to craft the judgments under appeal with no

confidence that a simple declaration without more judicial direction would trigger

good faith negotiations. On the record before her, this was not an unreasonable

assessment.

(1) Ontario’s Arguments

[277] Ontario makes three arguments on remedies. First, the trial judge erred in

excluding the costs of infrastructure and institutions from the calculation of net

Crown resource-based revenues. Second, her “fair share” formulation is not

supported on the evidence. Third, as framed, the remedy in the judgments is not

justiciable. We found earlier that the justiciability argument has no merit. We

²²⁴Canada somewhat moderated its recalcitrance during the hearing before the trial judge: see Stage

One Reasons, at para. 490.

²²⁵Stage One Reasons, at para. 492 (footnote omitted), and see paras. 378, 391, 481 and 491-97. The

trial judge was alive to the advantages of negotiation. The Supreme Court has often sounded its

preference for negotiation over litigation, motivated by negotiation’s promise of reconciliation, which is the

“grand purpose” of s. 35 of the Constitution Act, 1982, most recently in R. v. Desautel, 2021 SCC 17, 456

D.L.R. (4th) 1, at para. 87, per Rowe J. But there must be a will.

Page: 119

address the remaining two issues in turn after setting out the relevant language of

the judgments. We conclude with some observations on Stage Three in light of the

matters addressed in this section of the reasons.

(2)The Language of the Judgments

[278] The context for all three issues is set by the terms of the formal judgments

from the Stage One proceedings. For convenience, in our analysis, we will use the

text of the judgment from the Huron action, which is materially the same as the text

of the judgment from the Superior action. Our analysis applies equally to both

judgments.

[279] The trial judge found that the Treaties require the payment of a “fair share”

of net Crown resource-based revenues to the First Nations. Paragraph 1(a) of the

operative part of the judgment from the Huron action provides:

Pursuant to the Robinson Huron Treaty of 1850, the

Crown is obligated to increase, and the First Nation

Treaty Parties have a collective treaty right to have

increased, from time to time, the promised annuity

payment of £600 (or $2,400) if net Crown resource-based

revenues from the Treaty territory permit the Crown to do

so without incurring loss, with the amount of annuity

payable in any period to correspond to a fair share of

such net revenues for that period[.] [Emphasis added.]

[280] The trial judge added, at para. 1(d) of the judgment: “The Crown must

diligently implement the augmentation promise, so as to achieve the Treaty

Page: 120

purpose of reflecting in the annuities a fair share of the value of the resources,

including the land and water in the territory” (emphasis added).

[281] The trial judge included guidance on the definition of “net Crown resource-

based revenues” in paras. 3(b) and (c) of the judgment:

(b) For the purpose of determining the amount of net

Crown resource-based revenues in a particular period:

i. relevant revenues to be considered are

Crown resource-based revenues arising

directly or in a closely related way to the use,

sale, or licensing of land (which could

include the waters) in the Treaty territory,

including mineral and lumbering revenues

and other analogous revenues as received

by the Crown both historically and in the

future, but not including personal, corporate

or property tax revenues,

ii. relevant expenses to be considered are

Crown expenses related to collecting,

regulating,

and

supporting

relevant

revenues, but do not include the costs of

infrastructure and institutions that are built

with Crown tax revenues,

with these definitions to be applied as general principles

that are subject to clarification and further direction by the

Court in a future stage of this proceeding; and

(c) Failing agreement amongst the parties, the principles

to be applied for purposes of determining amounts that

are fairly and reasonably equal to a fair share of net

Crown resource-based revenues are subject to further

direction by the Court in a future stage of this proceeding.

Page: 121

(3) The Definition of Net Crown Resource-Based Revenues

[282] Ontario argues that the trial judge erred in excluding the costs of

infrastructure and institutions built with Crown tax revenues from the calculation of

net Crown resource-based revenues. To be fair to the trial judge, she embarked

on this exercise at the behest of the Huron and Superior Plaintiffs²²⁶and against

the opposition of Ontario and Canada, who urged her to “proceed cautiously”,

arguing that the questions of what constitutes a revenue and an expense were

better dealt with in Stage Three.²²⁷The trial judge’s ambivalence about deciding

the issue is signalled by her comment that: “I agree, to some extent, with both

positions.”²²⁸However, the trial judge accepted the Huron and Superior Plaintiffs’

argument that there was sufficient evidence before the court to “articulate general

principles”.²²⁹

[283] The trial judge accepted the arguments of Ontario and Canada that tax

revenues should not be considered in calculating net Crown resource-based

revenues²³⁰and on that basis excluded the costs of “the infrastructure and

institutions that are built with Crown tax revenues.”²³¹But her uncertainty is

revealed in this statement:

²²⁶Stage One Reasons, at para. 540.

²²⁷Stage One Reasons, at para. 541.

²²⁸Stage One Reasons, at para. 541.

²²⁹Stage One Reasons, at para. 541.

²³⁰Stage One Reasons, at para. 547.

²³¹Stage One Reasons, at para. 549.

Page: 122

With respect to further principles guiding the definition of

relevant revenues and expenses, I suggest that more or

better evidence at Stage Three of this litigation may be of

further assistance. The above general principles should

be considered as a starting point only.²³²

[284] The trial judge encouraged the parties to “come to an agreement on specific

revenue and expense categories”.²³³The same hedging for uncertainty is found in

paras. 3(b) and (c) of the judgment quoted earlier.

[285] Ontario argues that the hedging language “appears to leave open the

possibility that some tax revenues may be relevant, creating the potential for

inconsistency.” Ontario appears to fear a form of tracing as the basis for

establishing relevant revenues and expenses and notes that the ruling “failed to

take into account uncontested evidence that by far the majority of provincial

revenues and expenses flow through Ontario’s consolidated revenue fund.”

Ontario expects that “there likely will be no ‘infrastructure and institutions’ that have

been built exclusively with tax revenues” (emphasis in the original), and argues

that if “applied categorically, this ‘general principle’ may exclude expenses that

should be included, at least in part.”

[286] The trial judge’s desire to give some guidance was well-intentioned, but, in

our view, the counsel of caution should have prevailed. A prescriptive paragraph

in a judgment should not be framed as only a first foray into a complex and difficult

²³²Stage One Reasons, at para. 553.

²³³Stage One Reasons, at para. 554.

Page: 123

issue already scheduled to be heard. We would, as an exercise of prudence,

excise the words, “but not including personal, corporate or property tax revenues,”

from para. 3(b)(i) of the judgments, and the words, “but do not include the costs of

infrastructure and institutions that are built with Crown tax revenues” from

para. 3(b)(ii) of the judgments.

(4) The “Fair Share” Formulation

[287] Ontario argues that the trial judge erred in interpreting the Treaties as

promising the payment of annuities corresponding to a “fair share” without defining

“fair share” or articulating related principles. Ontario acknowledges that “[a]ll

parties to the Robinson Treaties likely intended the annuities agreed upon to be

‘fair’ in context”, but argues that the concept of “fair share” was not discussed or

agreed upon in Treaty negotiations and that there is no basis to infer any common

intention that the promise be for a “fair share”.

[288] The judgments provide that the Treaties require the payment of annuities

corresponding to a “fair share of the value of the resources, including the land and

water in the territory”. We would deconstruct the judgments into two possible

promises for analytical purposes. The first is that the augmentation clause was a

promise to share in the value of the land. The second is that a “fair share” was

promised.

Page: 124

[289] The first form of promise – to share in the value of the land - is supported on

the evidence and was woven through the trial judge’s interpretation of the

augmentation clause. The same cannot be said for the second form of the promise

– the elusive promise of fair share. We address each in turn.

The Promise to Share

[290] At the most obvious level, the concept of sharing was built into the

augmentation clause. Any future increase in the annuities will be funded out of net

Crown revenues – revenues from the ceded lands in excess of costs. In that simple

sense, the revenues would literally be shared.

[291] But the concept of sharing is more fundamental. It was integral to the

interpretation of the augmentation clause that the trial judge adopted, to quote it

again for convenience:

A third interpretation, which includes the second

interpretation, is 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.²³⁴

[292] The trial judge found that “[a] plan to share the wealth on an ‘if and when’

basis through an augmentation clause was always central to the understanding,

the aspiration, and the intent of both the Anishinaabe and the Crown.”²³⁵

²³⁴Stage One Reasons, at para. 461 (emphasis added).

²³⁵Stage One Reasons, at para. 466.

Page: 125

[293] From the Anishinaabe perspective, the principles that the trial judge found

“fundamental to the Anishinaabe’s understanding of relationships”,²³⁶particularly

the principle of reciprocity, suggest that the Treaties would have been viewed as

an agreement to share in the value of the territory. But the word “value” is

notoriously vague, as a review of the evidence shows.

[294] In her careful recounting of the evidence on this issue, the trial judge

described the Anishinaabe’s “established tradition of sharing their territory with

others, provided that the use or occupation was authorized.”²³⁷She described the

“ubiquitous” practice of gift giving among the Anishinaabe, which was considered

“an act of moral imperative, rather than an economic necessity.”²³⁸Within

Anishinaabe society, “hunters shared their bounty knowing that in turn, another

hunter would reciprocate and share his when needed.”²³⁹Gift giving occurred “in

accordance with the principle of reciprocity, which holds that items of value are

given with the expectation that the gift will be returned.”²⁴⁰

[295] The practice of gift giving became part of alliances between Euro-Canadians

and the Anishinaabe:

Prospective allies demonstrated their ability to take care

of each other through the mutual exchange of gifts.

Reciprocal gift giving was representative of the alliance

²³⁶Stage One Reasons, at para. 423.

²³⁷Stage One Reasons, at para. 32.

²³⁸Stage One Reasons, at para. 48.

²³⁹Stage One Reasons, at para. 48.

²⁴⁰Stage One Reasons, at para. 49.

Page: 126

that included the possibility of shared spaces and

resources, embodying the principle of mutual

interdependence. An alliance included the mutual

promise of responsibility for each other.²⁴¹

[296] Sharing was inherent in the Anishinaabe practice of gift giving and in the

principle of reciprocity. The trial judge found that, upon ceding their land to the

Crown, “[t]he Anishinaabe Chiefs and leaders had every reason to expect that their

‘gift’ attracted a reciprocal ‘gift’, commensurate with the value of what they had

provided.”²⁴²

[297] The trial judge also grounded her finding that the augmentation clause

promised some form of sharing in specific expressions by Anishinaabe leaders,

such as the specific request for a “share” in a petition from Chief Shingwaukonse

to Governor General Lord Cathcart, dated June 10, 1846. The trial judge found

that this petition, in which Chief Shingwaukonse protested mining activities,

“proposes to share the benefits derived from the territory.”²⁴³Chief Shingwaukonse

wrote:

I see Men with large hammers coming to break open my

treasures to make themselves rich & I want to stay and

watch them and get my share. Great Father – The

Indians elsewhere get annuity for lands sold if ours are

not fit in most places for cultivation they contain what is

perhaps more valuable & I should desire for sake of my

people to derive benefit from them… I should much wish

to Great Father to see you & take your hand and ask you

²⁴¹Stage One Reasons, at para. 50.

²⁴²Stage One Reasons, at para. 420.

²⁴³Stage One Reasons, at para. 126.

Page: 127

to tell me of these things, and also open to you my mind

for tho’ I can write yet I could speak it better to you… I

want always to live and plant at Garden River and as my

people are poor to derive a share of what is found on my

Lands. [Emphasis added.]

[298] The trial judge found that Chief Shingwaukonse “eloquently argued for a

share of the wealth for over four years” and did not abandon this idea during treaty

negotiations.²⁴⁴On another occasion, Chief Shingwaukonse expressed the desire

for “pay for every pound of mineral that has been taken off of our lands, as well as

for that which may hereafter be carried away.”²⁴⁵The trial judge also quoted Chief

Peau de Chat’s words: “A great deal of our mineral has been taken away. I must

have something for it. I reflect upon it, as well as upon that which still remains.”²⁴⁶

[299] These “demands from the Anishinaabe for a share of the proceeds of [the

mining] activity” were a significant part of the context that the trial judge took into

account in interpreting the augmentation clause.²⁴⁷She found that the concept of

sharing could be traced from the Chiefs’ expressions and petitions to the

recommendation in the Vidal-Anderson Report that provision be made, “if

necessary, for an increase of payment upon further discovery and development of

any new sources of wealth.”²⁴⁸

²⁴⁴Stage One Reasons, at para. 246.

²⁴⁵Stage One Reasons, at para. 131.

²⁴⁶Stage One Reasons, at para. 134.

²⁴⁷Stage One Reasons, at para. 330.

²⁴⁸Stage One Reasons, at para. 467, and see para. 161.

Page: 128

[300] The word “value” is used in different ways in the evidence and by the trial

judge in her reasons. The trial judge described Anderson’s visit in 1848. She

stated: “Chief Peau de Chat also sought information on the value of the mineral

wealth. He stated that he wanted a fair evaluation of his land’s worth and arrears

for the loss of minerals”.²⁴⁹This suggests a monetary conception of value. That

conception is also invoked in the Vidal-Anderson Commissioners’ belief “that the

Lake Superior Anishinaabe had been led ‘to form extravagant notions of the value

of their lands’”.²⁵⁰Both this conception of value, and the fact that it was not familiar

to the Anishinaabe, were also suggested by Chief Shingwaukonse’s comments to

the Commissioners, regarding his lawyer: “[W]e have appointed Macdonell to

arrange our affairs… I know nothing of the value of the land, - we thought of our

ignorance and employed Macdonell.”²⁵¹

[301] It is clear that a monetary conception of “value” was being employed and

that the “value” in question related to revenue produced from activities in the

territory (both revenue from mining locations and proceeds from sale of lots).²⁵²

[302] The trial judge asked: “What did the Commissioners Mean by ‘Value of the

Land’?” This question arose from the fact that “no prior treaty linked compensation

²⁴⁹Stage One Reasons, at para. 134.

²⁵⁰Stage One Reasons, at para. 146.

²⁵¹Stage One Reasons, at para. 150.

²⁵²Stage One Reasons, at para. 161.

Page: 129

to value.”²⁵³The trial judge pointed out that there was “no market for any Indian

land” after the Royal Proclamation of 1763; only the Crown could buy such land.

The trial judge stated: “Consequently, the Government controlled, or arbitrarily set,

the entire market for Anishinaabe land ‘sales’. There was no way for Anishinaabe

leaders to know ‘the value’ of the land, if value was measured as a function of

future revenue.”²⁵⁴

[303] The trial judge stated:

The Commissioners’ repeated statements on this issue

of “ignorance of value” leads to three possible inferences

concerning the Commissioners’ assumptions: first, that

“value”, however it was defined, was going to be an

important factor to consider to reach a mutually

acceptable agreement on annuity amount; second, that

the Anishinaabe would be in a compromised position

without knowledge of the value of the land or the wealth

that the territory could produce; and third, that the

Commissioners believed the Crown was in a superior

position to predict the “value of the land” and that this

superior position in negotiating imposed certain duties on

the Crown.²⁵⁵

[304] The trial judge accepted that it was the monetary concept that the

Anishinaabe sought to have included and that the Commissioners proposed

inserting into the Treaties:

The Commissioners proposed a compensation model

that took into consideration “the actual value” of the

²⁵³Stage One Reasons, at para. 167.

²⁵⁴Stage One Reasons, at para. 167.

²⁵⁵Stage One Reasons, at para. 171.

Page: 130

territory. In a recommendation that reverberates today,

the Commissioners made a novel proposal for the new

treaty to make “terms in accordance with present

information of its resources” while adding a provision for

an increase to the annuities “upon further discovery and

development of any new sources of wealth” (emphasis

added). This recommendation was based on the

knowledge the Commissioners acquired during their

extensive consultations with the Anishinaabe, as well as

their understanding of the challenges facing the Colonial

Government at the time.²⁵⁶

[305] She added: “Since at least 1846, Chief Shingwaukonse spoke of tying the

mineral wealth or monies collected in connection to the mining activity to

compensation.”²⁵⁷

[306] From this evidence, the trial judge concluded that the Treaties created a

revenue sharing model:

For the Crown, the idea of sharing revenues was novel,

but reflected their goal to obtain access to the land and

resources, limit their liability, and deal honourably with

the Anishinaabe.

A treaty that linked the future revenue of the territory to

the annuities payable to the Anishinaabe answered the

uncertainties and risks present. A revenue sharing model

was consistent with the perspective that the Anishinaabe

Chiefs held about their relationships with the newcomers

and the land. It was also consistent with the

Anishinaabe’s duties of responsibility as leaders toward

their people. In addition, the sharing model invited

renewal as circumstances changed. Most importantly, a

²⁵⁶Stage One Reasons, at para. 174.

²⁵⁷Stage One Reasons, at para. 176.

Page: 131

sharing model was consistent with the principle of

reciprocity.²⁵⁸

[307] This analysis and the trial judge’s finding that the Treaties created a revenue

sharing model are well supported and were not effectively challenged by Ontario.

The trial judge did not err in characterizing the Treaties in this way.

The Concept of “Fair Share”

[308] We turn now to the second promise identified by the trial judge as part of her

interpretation of the augmentation clause, the promise of a “fair share”. The

judgments set out what the trial judge considered to be the consequences of her

interpretation of the augmentation clause, which is constructed around the concept

of a fair share.

[309] To recapitulate, para. 1(a) of the operative language of the formal judgments

provides that: “the amount of annuity payable in any period [will] correspond to a

fair share of such net revenues for that period” (emphasis added). Paragraph 1(d)

of the judgments add that the Treaty purpose is to reflect in the annuities “a fair

share of the value of the resources, including the land and water in the territory”

(emphasis added). Paragraph 1(e) addresses the graciousness clause and obliges

the Crown to consult with the Treaty parties “to determine what portion, if any, of

the increased annuity amount is to be distributed by the Crown to the individual

²⁵⁸Stage One Reasons, at paras. 469-70.

Page: 132

Treaty rights holders in addition to the $4 per person per year they are already

being paid”. Finally, para. 3(c) leaves things somewhat more open: “the principles

to be applied for purposes of determining amounts that are fairly and reasonably

equal to a fair share of net Crown resource-based revenues are subject to further

direction by the Court in the future stage of this proceeding” (emphasis added).

[310] In terms of the trial judge’s reasons for decision, the expression “fair share”

first emerged in her summary of the position of the Huron Plaintiffs, who argued

for “renewing the treaty relationship and moving to a fair sharing agreement of the

land and its resources.”²⁵⁹The trial judge next referred to the “fair share of the net

revenues” as an implementation issue in dispute.²⁶⁰In argument, both the Huron

Plaintiffs and the Superior Plaintiffs suggested that a fair share would be 100

percent of net Crown revenues.²⁶¹The trial judge rejected this proposition stating,

“[s]haring, by definition, does not include taking 100% of the net benefits from the

Crown.”²⁶²She addressed and rejected the Huron Plaintiffs’ and Superior Plaintiffs’

claims to all of the revenues.²⁶³Finally, the trial judge noted that it was not yet

possible to specify what a fair share would be:

It is not possible to articulate the principles for a fair share

in a vacuum. There was very little evidence before the

²⁵⁹Stage One Reasons, at para. 362.

²⁶⁰Stage One Reasons, at para. 535.

²⁶¹Stage One Reasons, at para. 556. The Huron Plaintiffs argued on the motions and before this court

that Crown revenues represent only a fraction of the wealth generated by the territory.

²⁶²Stage One Reasons, at para. 560.

²⁶³Stage One Reasons, at paras. 555-61.

Page: 133

court on post-Treaty economic activity in the territories.

In a later stage of these proceedings it will be up to the

parties to demonstrate what division of revenues is

supportable on the evidence.²⁶⁴

Ontario’s Position

[311] As noted, Ontario argues that the trial judge erred in interpreting the Treaties

as promising the payment of annuities corresponding to a “fair share” without

defining “fair share” or articulating related principles.

Analysis

[312] We agree with Ontario that the trial judge’s interpretation of the Treaties fell

short on the “fair share” issue. As we will explain, the trial judge’s interpretation of

the Treaties as giving the Anishinaabe a “fair share” of the value of the territory

went beyond a generous construction of the Treaties.

(i)

The “Fair Share” Error

[313] The expression “fair share” is not an actual interpretation of the

augmentation clause. The “promise to share the revenues from the territory” gains

nothing substantive from the addition of the words, “fair share”. The concept of a

“fair share” is neither drawn from the evidence nor is it especially useful in

understanding the Crown’s obligations under the Treaties. The expression is a

²⁶⁴Stage One Reasons, at para. 559.

Page: 134

rhetorical gloss that adds nothing substantive but has the potential to work

mischief.

[314] The trial judge’s interpretation of the Treaty promises has two elements. The

first is 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.”²⁶⁵The second relates to the

graciousness clause and obliges the Crown to consult with the Treaty parties to

determine how much of any increase was to be paid directly to the individual Treaty

rights holders.²⁶⁶

[315] We recognize that at one level, no one can quarrel with the idea of a “fair

share”. We instill the virtue of sharing in our children. As the trial judge noted,

sharing is what the Treaties are built on. No reasonable person would oppose an

arrangement that was “fair”. Ontario acknowledges that “[a]ll parties to the

Robinson Treaties likely intended the annuities agreed upon to be ‘fair’ in context.”

So, on this reading, “fair share” seems quite innocent. But that would downplay the

effectiveness of a rhetorical figure of speech. It was introduced by the Huron and

Superior Plaintiffs’ counsel for that reason.²⁶⁷

²⁶⁵Stage One Reasons, at para. 461.

²⁶⁶Stage One Reasons, at para. 397. See also Huron Action Stage One Partial Judgment, at para. 1(e);

Superior Action Stage One Partial Judgment, at para. 1(e).

²⁶⁷Familiar figures of speech are used in legal rhetoric to prompt the intuitive adoption of a favourable

schema because they are often unthinkingly accepted. This is a form of “narrative priming”: see

Page: 135

[316] The trial judge’s judgment that the Treaties promise a “fair share” of net

Crown revenues is not supported by evidence. This phrase does not appear in any

of the historical records. It seems to have originated with counsel. The Huron

Plaintiffs, in their Amended Statement of Claim, seek “[j]udgment … that the Crown

is to forthwith provide payment of a fair share of the net profit, said share to be the

subject of a negotiated agreement between the Crown and the Plaintiffs.”²⁶⁸They

state:

The Robinson Huron Treaty Territory has been

considerably taken-up since the signing of the Treaty in

1850. The Robinson Huron Treaty Anishinabek were not

meaningfully consulted by the Crown with regard to the

taking-up of those lands. Nor were they accommodated,

as provided in the Treaty, by way of being paid a fair

share of resource revenues as promised by Robinson in

1850.²⁶⁹

[317] The expression “fair share” was repeated many times by counsel for both

the Huron and Superior Plaintiffs, in oral and written submissions. The “fair share”

concept was advanced as part of Robinson’s understanding of the augmentation

clause (“Mr. Robinson himself must have believed that the augmentation clause

was capable of providing the Anishinaabe with a fair share of the proceeds of the

Linda L. Berger & Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (London

and New York: Routledge, 2018) at pp. 84, 109.

²⁶⁸Appeal Book, Tab 4.a.1, para. 1(l).

²⁶⁹Appeal Book, Tab 4.a.1, para. 123 (emphasis added).

Page: 136

land”);²⁷⁰as the desire of Chief Shingwaukonse (“He wants his fair share”)²⁷¹and

other Anishinaabe leaders (“[W]e have the Fort William Chief and principal man

concerned that they want their fair share”);²⁷²as the core purpose of the

augmentation clause (“[W]e say that that is an approach that’s entirely consistent

with the purpose of the augmentation clause, which is to provide the Anishinaabe

with a fair share of the revenues”);²⁷³and – in its absence – as the basis of later

complaints (“They’re complaining they’re not getting their fair share”).²⁷⁴

[318] At one point, the trial judge asked counsel about the origin of the phrase,

“fair share”. At first, counsel agreed that this phrase originated in the Vidal-

Anderson report. Counsel then corrected himself and said, instead, that it came

from Chief Shingwaukonse’s 1846 petition, stating, “He says, I want my fair

share.”²⁷⁵But this too was an error by counsel. There is no evidence on the record

that Chief Shingwaukonse ever used the phrase “fair share”. He said that he

²⁷⁰Opening Submissions of the Huron Plaintiffs, Joseph Arvay, September 25, 2017, Transcript, Vol. 1, at

p. 23.

²⁷¹Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26, 2017, Transcript,

Vol. 2, at p. 141.

²⁷²Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26, 2017, Transcript,

Vol. 2, at p. 142.

²⁷³Closing Submissions of the Huron Plaintiffs, Joseph Arvay, June 4, 2018, Transcript, Vol. 68, at p.

10,048.

²⁷⁴Closing Submissions of the Superior Plaintiffs, Harley Schachter, June 7, 2018, Transcript, Vol. 71, at

p. 10,524.

²⁷⁵Closing Submissions of the Superior Plaintiffs, Harley Schachter, June 6, 2018, Transcript, Vol. 70, at

pp. 10,307-8.

Page: 137

wanted to “get my share”, and that he desired “as my people are poor to derive a

share of what is found on my Lands.”²⁷⁶

(ii) The Impact of Adopting “Fair Share”

[319] Introducing the concept of “fair share” into the judgments is not without

consequences. It might seem obvious that the share owed to the Anishinaabe

ought to be a fair one. However, as can be seen from the trial judge’s attempt to

determine what constitutes a fair share, the concept tends to focus the mind on the

amount or percentage of revenue that ought to be redirected to the Treaty First

Nations, rather than on the state of affairs that this promise to share sought to, and

ought to, achieve. The Anishinaabe were not focused on subsistence in the Treaty

negotiations but on sharing the wealth.²⁷⁷They sought the ability to live as they

had so long as possible but also sought to benefit from the rise in living standards

that would accompany development, especially if that development impaired their

traditional way of life. They were not aiming at mere subsistence.

(iii) What Kind of Sharing is Required by the Treaty Promise?

[320] The trial judge’s task in Stage Three is to determine what kind of sharing the

augmentation clause requires and what increase is necessary in the annuities to

fulfil the Treaty promise.

²⁷⁶Address of Chief Shingwaukonse to Lord Cathcart, June 10, 1846, Exhibit 01-0437.

²⁷⁷Stage One Reasons, at para. 593.

Page: 138

[321] In describing the Anishinaabe principle of responsibility, the trial judge

stated:

The Anishinaabe Chiefs and leaders came to the Treaty

Council with a responsibility to ensure that their people

could enjoy continued dependence on the land for their

sustenance, their medicines, and their spiritual well-

being, and, equally, that they could continue to be

responsible for that land.²⁷⁸

[322] Based on the trial judge’s reasoning, the common intention of the parties

was to share in such a way that would provide for both communities. This would

suggest that the “share” promised is to be determined not only based on the extent

of Crown revenues but also with reference to the relative wealth and needs of the

different communities. Obviously, the Anishinaabe would not have expected their

communities to suffer a range of deprivations, including substandard housing and

boil water advisories, while non-Indigenous communities thrived. Nor was it likely,

based on the Anishinaabe principles discussed by the trial judge, that the

Anishinaabe would have wished to enjoy great personal wealth while their fellow

Canadians suffered deprivation.

[323] The trial judge noted:

[T]he court and the parties must return to the shared

goals, expectations, and understandings of the parties in

1850 and, based on those shared goals, expectations,

and understandings, devise processes and procedures

²⁷⁸Stage One Reasons, at para. 417.

Page: 139

for the implementation of the Treaties’ promise in the

modern era.²⁷⁹

The parties in negotiations, or the trial judge in Stage Three, must determine the

form, level, and aim of the sharing that the augmentation clause requires. The

parties and the court should be led, in doing so, by the Treaty parties’ “shared

goals, expectations, and understandings” in 1850, including the Anishinaabe

principles of respect, responsibility, reciprocity, and renewal, identified by the trial

judge, and the Crown’s commitment to being both liberal and just.

[324] The remaining task of interpretation, and the basis of implementation, lies in

determining what the sharing relationship envisioned by the Anishinaabe and the

Crown in 1850 would look like today and how that relationship can be brought

about. This is the task of reconciliation.

[325] The trial judge observed that “questions regarding implementation remain

subject to dispute”.²⁸⁰The precise form of sharing required by the Robinson

Treaties remains to be determined. Because of our concerns about the possible

misuse of the concept of “fair share” as a figure of speech, we would amend the

formal judgment to delete it, as set out in Appendix “A”.

²⁷⁹Stage One Reasons, at para. 536.

²⁸⁰Stage One Reasons, at para. 350.

Page: 140

(5) Observations on Stage Three

[326] We make two observations. First, the staging of this case has introduced

some uncertainties into the process. There is a functional trifurcation but the stages

have become somewhat confused. Broadly conceived, Stage One was dedicated

to the interpretation of the Treaties, the identification of the Treaty promises, and

the determination of the duties of the Crown, while Stage Two related to the

Crown’s defences, and Stage Three to the Huron and Superior Plaintiffs’ remedies.

However, as matters progressed, some elements of interpretation seem to have

been reserved for Stage Three. The trial judge also seems to have reserved a

decision on whether the Crown breached the Treaties for Stage Three.²⁸¹In some

ways, Stage Three has become a basket for unresolved issues carried forward

from Stages One and Two.

[327] The second observation is that the implementation of the Treaty promises

in Stage Three presents unusual complexities that will be difficult to manage. It

would be far better for the parties to negotiate, rather than litigate, the remaining

issues.

[328] Negotiations also allow the court to step back from “[c]lose judicial

management” that “may undermine the meaningful dialogue and long-term

²⁸¹Stage One Reasons, at para. 393, but see her strong words quoted at para. 243 of these reasons.

Page: 141

relationship that these treaties are designed to foster.”²⁸²Although written about a

modern treaty, these words would apply equally to a negotiated agreement on how

the promises in the Robinson Treaties are to be implemented.

[329] The careful language of modern treaties, having been negotiated by

competent, sophisticated and adequately resourced parties, has the advantage of

creating precision, continuity, transparency and predictability,²⁸³and is due judicial

deference.²⁸⁴In our view, this would also be true of negotiated agreements for the

implementation of historical treaties.

[330] Neither the trial judge nor this court has any information as to whether and

to what extent the parties have engaged in negotiations.²⁸⁵But there appear to

have been three barriers to successful negotiations. The first is the position taken

by Ontario and Canada before the trial judge that the Crown has unfettered

discretion as to whether, when, how, and in what amount the annuities might be

increased. This court’s decision clarifies the Crown’s obligations. There is

something to negotiate about.

²⁸²First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576, at para. 60.

²⁸³Little Salmon, at para. 12.

²⁸⁴Nacho Nyak Dun, at para. 36.

²⁸⁵Stage One Reasons, at fn. 279.

Page: 142

[331] The second barrier to negotiation was the trial judge’s insertion of the

concept of “fair share” into the interpretation of the augmentation clause, which we

addressed earlier. This court’s decision eliminates this barrier.

[332] The final barrier is the ongoing struggle between Ontario and Canada over

which government will pay the annuities and, if both are obliged to contribute, in

what proportion. The panel requested that the parties consider having the trial

judge hear and determine the allocation issues on an expedited basis, before the

Stage Three hearing. Ontario and Canada were opposed to doing so. In the

absence of their consent, this court has no jurisdiction under the Rules of Civil

Procedure to require that the allocation issue be dealt with separately and in

priority.²⁸⁶

[333] We urge both Crown parties to reconsider their stance on expediting the

allocation issue in order to facilitate the negotiation of an agreement on the

implementation of the Robinson Treaties. In our view, the best way to accomplish

the task of reconciliation is through negotiation. Compared to continued litigation,

with its attendant close judicial management, a modern agreement on the

implementation of the Robinson Treaties, negotiated by the Treaty parties, is more

²⁸⁶Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 6.1.01. Rule 6.1.01 states that: “With the consent

of the parties, the court may order a separate hearing on one or more issues in a proceeding, including

separate hearings on the issues of liability and damages.” This rule “precludes making [a bifurcation]

order without the consent of the parties”: Duggan v. Durham Region Non-Profit Housing Corporation,

2020 ONCA 788, 454 D.L.R. (4th) 496, at para. 38.

Page: 143

likely to produce a strong, renewed Treaty relationship.²⁸⁷True reconciliation will

not be achieved in the courtroom.²⁸⁸

F.

ISSUE FIVE: DID THE TRIAL JUDGE ERR IN HER COSTS AWARD

FOR THE STAGE ONE PROCEEDINGS?

[334] Ontario also appeals from the costs awards in favour of the Superior and

Huron Plaintiffs for the Stage One proceedings. The trial judge awarded costs and

disbursements to the Superior Plaintiffs of $5,148,894.45 and $9,412,447.50 to the

Huron Plaintiffs, with Ontario and Canada each to pay one half of those amounts.

[335] Canada does not appeal from the costs awards.

[336] Ontario argues that the trial judge erred in awarding 85 percent of actual

legal fees after concluding that partial indemnity costs were appropriate. Ontario

submits that partial indemnity costs cannot exceed 67 percent of fees paid. It

submits that the trial judge erred in principle by giving no weight or insufficient

weight to Ontario’s reasonable expectations in awarding disproportionately high

costs to the Superior and Huron Plaintiffs, and argues that she erred by failing to

scrutinize the costs they claimed in a substantive and meaningful way.

[337] For the Superior Plaintiffs, Ontario asks that the costs be fixed at the rate of

67 percent of the fees found by the trial judge to be recoverable, that the manner

²⁸⁷Nacho Nyak Dun, at para. 60.

²⁸⁸Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para.

24.

Page: 144

in which the trial judge dealt with costs awarded for an earlier motion be varied,

and that these plaintiffs recover their disbursements as awarded by the trial judge.

The Superior Plaintiffs claimed $5,151,448.21 in fees. The difference between an

award of 85 and 67 percent of claimed fees is $927,267.88, of which $463,630.34

would be paid by Ontario. Inclusive of disbursements, Ontario says the total award

ought to be $4,166,381.06.

[338] For the Huron Plaintiffs, Ontario submits that the hours claimed are

excessive, asks that they be reduced by 50 percent, and requests that costs be

fixed at 67 percent of that amount plus the disbursements allowed by the trial

judge. The Huron Plaintiffs claimed $8,383,930.00 in fees. The difference between

an award of 85 percent of claimed fees and 67 percent of the proposed reduced-

hours fees is $4,317,723.95, of which $2,158,861.98 would be paid by Ontario.

Inclusive of disbursements, Ontario says the total award ought to be

$5,094,724.55.

(1) The Trial Decision on Costs

[339] The trial judge found that the Huron Plaintiffs and the Superior Plaintiffs were

entitled to costs on a partial indemnity basis fixed at 85 percent of their fees and

100 percent of their disbursements.²⁸⁹

²⁸⁹Stage One Costs Reasons, at para. 43.

Page: 145

[340] Before the trial judge, Ontario and Canada agreed that it was appropriate to

award the Huron Plaintiffs and the Superior Plaintiffs their costs for Stage One and

the summary trial, including pleadings and case management. Ontario and

Canada also agreed that they each should be liable for half of the costs award.

They disagreed, however, with the Huron Plaintiffs and the Superior Plaintiffs on

the quantum of costs, in addition to other issues that are not pursued on appeal.

[341] The trial judge first found that the Huron Plaintiffs and the Superior Plaintiffs

were entitled to costs at a higher-than-typical rate of 85 percent based on the

factors set out in r. 57.01 of the Rules of Civil Procedure, including:

Amount Claimed – The amount claimed in the litigation is substantial;²⁹⁰

Complexity of the Proceedings – The litigation is on the high end of

complexity (i.e., the interpretation of two historic Treaties will re-shape

the Crown-Indigenous relationship for a vast area of northern Ontario),

the procedural history of the litigation is complex and evolving, and

certain legal and strategic decisions by Ontario and Canada prolonged

or complicated the proceedings;²⁹¹

Importance of the Issues – The issues raised in the case are of central

importance to the entire Anishinabek Nation and central to the broad

²⁹⁰Stage One Costs Reasons, at para. 16.

²⁹¹Stage One Costs Reasons, at paras. 17-22.

Page: 146

national public interest in reconciliation with Indigenous peoples of the

upper Great Lakes Territories;²⁹²

Principle of Indemnity – All parties retained teams of highly specialized

and experienced counsel and should be fairly compensated for the

increased costs associated with specialized and experienced counsel;²⁹³

and

Context of Indigenous Legal Issues – The fiduciary relationship forms

an important consideration for the award of costs in this matter and, in

these circumstances, the small, remote and historically economically

marginalized First Nations plaintiffs should not have to assume 40

percent of the costs in this litigation.²⁹⁴

(2) Analysis

[342] Stage One of these proceedings was of the utmost importance to the Treaty

partners. The trial of this part continued over 78 days. The parties filed twenty

expert reports and nineteen witnesses gave oral evidence. The trial time was the

tip of the iceberg in comparison to the years of preparation.

[343] Leave to appeal costs is not granted lightly. As this court observed in Barresi:

The test for leave to appeal costs is high: there must be

“strong grounds upon which the appellate court could find

²⁹²Stage One Costs Reasons, at para. 23.

²⁹³Stage One Costs Reasons, at para. 24.

²⁹⁴Stage One Costs Reasons, at para. 25.

Page: 147

that the judge erred in exercising his [or her]

discretion”: McNaughton Automotive Limited v. Co-

Operators General Insurance Company (2008), 95 O.R.

(3d) 365 (C.A.), at para. 24, citing Brad-Jay Investments

Ltd. v. Szijjarto, 218 O.A.C. 315 (2006) (C.A.), at para.

21. A costs award should be set aside on appeal “only if

the trial judge has made an error in principle or if the costs

award is plainly wrong”: Hamilton v. Open Window

Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at

para. 27.²⁹⁵

[344] Costs awards are “quintessentially discretionary.”²⁹⁶They are accorded a

very high degree of deference.²⁹⁷

[345] In Frazer, this court observed:

A trial judge has extremely broad discretion in the

awarding of costs, which is entitled to a very high degree

of deference and [is] not to be taken lightly by reviewing

courts. A reviewing court can only review a trial judge’s

award of costs where he or she has considered irrelevant

factors, failed to consider relevant factors or reached an

unreasonable conclusion. And finally, a reviewing court

will not interfere with a trial judge’s disposition on costs

on the grounds that the members of the appellate court

would have exercised their discretion differently:

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1

S.C.R. 3 at para. 39.²⁹⁸

[346] As this court noted in Bondy-Rafael:

[P]artial indemnity fees are not defined in terms of an

exact percentage of full indemnity fees under the Rules

²⁹⁵Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, 58 C.P.C. (8th) 318, at

para. 14.

²⁹⁶Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126.

²⁹⁷See Walker v. Ritchie, 2006 SCC 45, [2006] 2 S.C.R. 428, at para. 17; Frazer v. Haukioja, 2010 ONCA

249, 101 O.R. (3d) 528, at para. 75.

²⁹⁸Frazer, at para. 75.

Page: 148

of Civil Procedure. While representing a portion of full

indemnity costs, that portion has never been defined with

mathematical precision but generally amounts to a figure

in the range of more than 50 percent but less than 100

percent. This is as it should be given the myriad factors

that the court must consider in the exercise of its

discretion in fixing costs.²⁹⁹

[347] Similarly, this court has repeatedly noted that the extent of the reduction

associated with partial indemnity costs is a matter within the trial judge’s

discretion.³⁰⁰As observed in Wasserman, Arsenault Ltd.:

The degree of indemnification intended by an award of

partial indemnity has never been precisely defined.

Indeed, a mechanical application of the same percentage

discount in every case where costs are awarded on a

partial indemnity scale would not be appropriate. In fixing

costs, courts must exercise their discretion, with due

consideration of the factors set out in rule 57.01(1), in

order to achieve a just result in each case.³⁰¹

[348] The trial judge did not err in principle by taking into account the burden it

would place on the Huron and Superior Plaintiffs were they to recover only two

thirds of their legal fees. This is in the context of admitted neglect by the Crown of

its Treaty promises for many decades, and the extreme difficulty of bringing

proceedings like these for recognition of Treaty rights by people who have been

marginalized by that neglect.

²⁹⁹Bondy-Rafael v. Potrebic, 2019 ONCA 1026, 441 D.L.R. (4th) 658, at para. 57.

³⁰⁰See e.g., Whitfield v. Whitfield, 2016 ONCA 720, 133 O.R. (3d) 753, at para. 29.

³⁰¹Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), at para. 5.

Page: 149

[349] In Okanagan Indian Band, the Supreme Court noted with approval the Court

of Appeal for British Columbia’s reasoning that “constitutional principles and the

unique nature of the relationship between the Crown and aboriginal peoples were

background factors that should inform the exercise of the court’s discretion to order

costs.”³⁰²

[350] Nor can it be said that the trial judge erred in the manner in which she treated

the costs paid by Canada on an earlier motion, for which Ontario now seeks some

credit. Ontario’s materials do not permit this court to independently calculate what

amount any credit should be. If Ontario’s submissions are correct, the Superior

Plaintiffs say that Ontario would be entitled to a further credit of $31,845.40.

However, this court is unable to conclude that there was an error in principle or

that the trial judge was clearly wrong in the manner in which she dealt with the

costs paid by Canada. She did deduct the former costs paid from the costs

awarded.

[351] Leave to appeal from the costs award in favour of the Superior Plaintiffs is

refused.

[352] Ontario argued at trial that the hours claimed by the Huron Plaintiffs were

excessive. Ontario’s cost outline noted 11,956 hours of legal work for both

³⁰²British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at

paras. 16, 47, aff’g 2001 BCCA 647, 95 B.C.L.R. (3d) 273.

Page: 150

actions.³⁰³The Superior Plaintiffs started their action in 2001 and proceeded

through discovery. Their costs summary claimed 7,644 hours of legal work. The

Huron Plaintiffs started their action in 2014, relied in part on the discovery in the

other action, and yet claimed for 28,211 hours of legal work which the trial judge

allowed in full.

[353] The trial judge dealt with the controversy regarding the hours spent briefly:

Canada accepts the reported hours, hourly rates and

disbursements as reasonable, subject to an assurance

that the fees and disbursements claimed for Stage One

do not include any time or expenses either already

advanced. This assurance was provided.

Ontario challenges the number of hours, size of the team

and travel disbursements of the Huron claim based upon

comparison to their own hours and costs. I am satisfied

the Huron claim survives these challenges.³⁰⁴

[354] Given the position on appeal, the hourly rates and the travel disbursements

are no longer in issue, but Ontario says the hours claimed and the size of the Huron

Plaintiffs’ legal team – including 22 lawyers – was excessive.

[355] The trial judge did not address the substantial difference between the hours

claimed as between the Huron and the Superior Plaintiffs. The material before her

did not permit her to come to a conclusion as to the amount of time reasonably

³⁰³The Superior Plaintiffs say that Ontario understates the time it actually spent. Ontario did not dispute

this assertion during oral arguments, but the record does not permit this court to review Ontario’s

calculation.

³⁰⁴Stage One Costs Reasons, at paras. 6-7.

Page: 151

required by the Huron Plaintiffs to deal with all aspects of the action. Was there

over-lawyering or unnecessary duplication of legal work? There may be logical

explanations for the substantially greater amount of legal time claimed or there

may not. For example, the Huron Plaintiffs claimed more than 6,000 hours of law

clerk, paralegal and student work. In contrast, Ontario’s archival research was

performed by an independent contractor, Public History, whose time was reflected

in a disbursement rather than billable hours. It may also be that the Superior

Plaintiffs were able to rely on some of the work done by the Huron Plaintiffs.

[356] After coming to a conclusion as to the time reasonably spent on this matter

the trial judge would then be required to “step back and consider the result

produced and question whether, in all the circumstances, the result is fair and

reasonable.”³⁰⁵

[357] As noted in Murano, this overall sense of what is reasonable “cannot be a

properly informed one before the parts are critically examined.”³⁰⁶

[358] Leave to appeal from the costs award in favour of the Huron Plaintiffs is

granted. The disbursements allowed by the trial judge are upheld. The fees

allowed are set aside and remitted to the trial judge for reconsideration in light of

these reasons. This assessment will have to proceed with caution, given that these

³⁰⁵Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 24, citing

Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

³⁰⁶Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100.

Page: 152

proceedings are continuing, and privileged matters must be protected from

disclosure.

[359] It will be up to the trial judge to devise a procedure to deal with the manner

in which evidence as to the reasonableness of the time spent is presented to her.

G.

DISPOSITION

[360] For these reasons, as summarized in the seven propositions set out

above,³⁰⁷we would grant the Stage One appeals in part, direct that the Stage One

judgments be amended as set out in Appendix “A” to these reasons, and remit the

matter of the Huron Plaintiffs’ costs for the Stage One proceedings to the trial judge

for reconsideration in accordance with these reasons. We would dismiss the Stage

Two appeal. We would award costs of the appeals in the manner set out in the

joint reasons.

“P. Lauwers J.A.”

“G. Pardu J.A.”

³⁰⁷Our reasons, at para. 100.

Page: 153

Strathy C.J.O. and Brown J.A.:

A. INTRODUCTION

[361] We concur with the reasons of Lauwers and Pardu JJ.A. on the issues of

costs and indexing. We also agree with the reasons of Hourigan J.A. on the issues

of fiduciary duty, Crown immunity and limitation defences.

[362] We issue these reasons to explain: (1) why the standard of review set out in

Marshall applies when reviewing the trial judge’s interpretation of the Robinson

Treaties;³⁰⁸(2) why, applying that standard, we conclude the trial judge committed

reversible error in her interpretation of the Robinson Treaties; (3) how the honour

of the Crown informs the Crown’s obligation to implement the Treaties; and (4) the

appropriate remedy is in this case.

[363] To set the stage for our analysis, we begin by reviewing the trial judge’s

interpretation of the Treaties, the principles governing treaty interpretation, and the

standard of appellate review in treaty interpretation cases. We then explain how

the trial judge erred in her interpretation of the Treaties, including by failing to

consider both the plain meaning of the Treaties’ texts and the only interpretation

of the Treaties that reconciled the parties’ intention in a manner consistent with the

historical record. We then explain why, notwithstanding these errors, we agree with

³⁰⁸R. v. Marshall, [1999] 3 S.C.R. 456.

Page: 154

the trial judge and the majority of this court that, after 150 years of inaction, the

Crown can be compelled to exercise its discretion about whether to increase the

annuities to address an injustice that brings dishonour to the Crown. Finally, we

outline the judgment we would grant in light of our conclusions.

B.

THE TRIAL JUDGE’S INTERPRETATION OF THE TREATIES

[364] At paras. 70-80 of this court’s joint reasons, we summarized the trial judge’s

interpretation of the Treaties. Briefly stated, the trial judge interpreted the Treaties

as imposing a “mandatory and reviewable obligation” on the Crown “to increase

the Treaties’ annuities when the economic circumstances warrant.”³⁰⁹She held

that the principle of the honour of the Crown and the doctrine of fiduciary duty

imposed on the Crown “the obligation to diligently implement the Treaties’ promise”

to reflect the value of the territories in the annuities.³¹⁰The court’s formal

judgments provided that the Crown is required to increase the annuities without

limit, “so as to achieve the Treaty purpose of reflecting in the annuities a fair share

of the resources, including the land and water, in the territory”.³¹¹

[365] The majority of our colleagues conclude that the trial judge’s interpretation

of the Treaties was reasonable and free from legal error, though they do conclude

she erred in her approach to remedies. As we do not share that same opinion on

³⁰⁹Stage One Reasons, at para. 3.

³¹⁰Stage One Reasons, at para. 3.

³¹¹Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage One Partial Judgment,

at para. 1(d).

Page: 155

the treaty interpretation issue, we will review the trial judge’s reasons in more detail

in order to explain our disagreement.

[366] Prior to engaging in the interpretative exercise, the trial judge described the

context of Anishinaabe political and social life, both before and after their contact

with Europeans.³¹²She identified some of the important milestones on the road to

the Robinson Treaties, from the Royal Proclamation of 1763 (the “Royal

Proclamation”) and the Council at Niagara in 1764 to the Vidal-Anderson

Commission and the “Mica Bay Incident” in 1849.³¹³She also described the events

leading up to the Treaty Council in September 1850 and the activities and

negotiations at the Council itself.³¹⁴Referring to Marshall, she noted that this

history was “necessary for the interpretation of the Robinson Treaties in their full

historical, cultural, linguistic, and political context”.³¹⁵In so doing, the trial judge

appropriately set the stage for the consideration of the Treaties in the context of

the broader historical relationship between the Crown and First Nations in Canada

and the specific relationship between the Crown and the Anishinaabe of the upper

Great Lakes.

³¹²Stage One Reasons, at paras. 15-61.

³¹³Stage One Reasons, at paras. 62-207.

³¹⁴Stage One Reasons, at paras. 208-37.

³¹⁵Stage One Reasons, at para. 14, citing Marshall, at para. 11.

Page: 156

[367] The trial judge also examined the post-Treaty record, which Ontario argued

was instructive concerning the parties’ understanding of the Treaties’ promise.³¹⁶

She ultimately found that the record was “vague, inconsistent, and conflicting” and

“of limited assistance to the exercise of searching for the parties’ common

intention.”³¹⁷

[368] The trial judge then turned to the principles of treaty interpretation, which

she summarized from Marshall.³¹⁸These are set out below and are not in dispute.

She described what she called a “two-step approach” to treaty interpretation

proposed by McLachlin J. (as she then was) in Marshall.³¹⁹McLachlin J. identified

the first step as examining “the words of the treaty text and not[ing] any patent

ambiguities and misunderstandings arising from linguistic and cultural

differences.”³²⁰This would “lead to one or more possible interpretations and will

identify the framework for a historical contextual inquiry to enable the court to

ascertain a final interpretation.”³²¹

[369] The trial judge described the “second step” of the Marshall approach as “a

consideration of the possible meanings of the text against the treaty’s historical

and cultural context. These various meanings may arise from the text or the

³¹⁶Stage One Reasons, at paras. 281-320.

³¹⁷Stage One Reasons, at para. 318.

³¹⁸Stage One Reasons, at para. 324, citing Marshall, at para. 78.

³¹⁹Stage One Reasons, at para. 327.

³²⁰Stage One Reasons, at para. 328, citing Marshall, at para. 82.

³²¹Stage One Reasons at para. 328.

Page: 157

contextual analysis.”³²²She pointed out that contextual evidence assists the court

in ascertaining the full extent of the agreement of the parties.³²³

[370] Finally, the judge identified what she called the “third step”: examining the

historical context to determine which interpretation comes closest to reflecting the

parties’ common intention.³²⁴Citing Marshall, she described this as choosing “from

among the various possible interpretations of the common intention the one which

best reconciles the parties’ interests.”³²⁵

[371] The trial judge found that the purpose of the augmentation clause was to

bridge the gap between the expectations of the parties by promising future

annuities that would reflect the value of the territory.³²⁶

[372] She noted that the parties did not agree about two features of the

augmentation clause.³²⁷The first and primary dispute, she said, was whether the

augmentation clause included a mandatory promise to increase the annuity

payments above £1 ($4) per person, in step with the revenues received from the

Treaty territories, or whether that decision was discretionary.³²⁸The second point

of contention was whether, as the Huron and Superior Plaintiffs alleged, the

³²²Stage One Reasons, at para. 329 (footnote omitted), citing Marshall, at para. 83..

³²³Stage One Reasons, at para. 330.

³²⁴Stage One Reasons, at para. 331.

³²⁵Stage One Reasons, at para. 331, quoting Marshall, at para. 83.

³²⁶Stage One Reasons, at para. 338.

³²⁷Stage One Reasons, at paras. 343, 347.

³²⁸Stage One Reasons, at para. 343.

Page: 158

“perpetual annuity” of £500 or £600 to be paid to the Chiefs and their Tribes was

a “collective amount”, from which a “distributive amount”, limited to a maximum of

£1 per person, was to be paid to individuals.³²⁹

[373] After setting out the positions of the parties on these and other issues, the

trial judge turned to the interpretation of the augmentation clause.³³⁰She described

this exercise as finding the common intention that best reconciled the parties’

interests.³³¹

[374] She set out her conclusion at the outset of her analysis, namely that the

parties did not intend to cap the annuity and that the reference to £1 in the

augmentation clause was a “limit only on the annuity amount that may be

distributed to individuals, and this distributive amount is a portion of the collective

lump sum annuity payable to the Chiefs and their Tribes.”³³²

[375] The trial judge began her analysis with “step one” of the Marshall framework,

which she described as determining the “[p]resence of [a]ny [p]atent [a]mbiguities

or [m]isunderstandings”.³³³She found that the “first and most confounding

ambiguity is whether the parties intended that the promise of a perpetual annuity

would be a collective, as opposed to an individual, entitlement.”³³⁴This, she said,

³²⁹Stage One Reasons, at paras. 345-46.

³³⁰Stage One Reasons, at paras. 352-91.

³³¹Stage One Reasons, at paras. 351, 395-97.

³³²Stage One Reasons, at para. 397.

³³³Stage One Reasons, at Part X.A.

³³⁴Stage One Reasons, at para. 400.

Page: 159

was “key to understanding the parties’ intentions with respect to the existence of a

‘cap’.”³³⁵She noted that there was no reference to a per capita payment in the

“consideration clause”, which stated:

[T]hat for 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 perpetual annuity of five

hundred pounds, the same to be paid and delivered to

the said Chiefs and their Tribes….³³⁶

[376] She observed that there was a provision in the augmentation clause to

increase the annuity, which was triggered if a condition was met:

[I]n case the territory hereby ceded by the parties … 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....³³⁷

[377] She also concluded that the “sub-clause” that followed set out a further

condition on the increase:

[P]rovided 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....³³⁸

[378] The trial judge stated that from her reading of this clause, the text caused a

“real risk of misunderstanding or different understandings”: namely, whether the

³³⁵Stage One Reasons, at para. 400.

³³⁶Stage One Reasons, at para. 401.

³³⁷Stage One Reasons, at para. 402.

³³⁸Stage One Reasons, at para. 403.

Page: 160

entire lump sum annuity was to be capped by an amount paid to each individual,

or whether it was to be increased without limit, while any individual distributions

from the lump sum would be subject to a cap.³³⁹The Huron Plaintiffs and the

Superior Plaintiffs argued that the “cap” was either inapplicable or applied only to

individual distributions, whereas Canada and Ontario argued that the £1 ($4) was

a “cap” or limit on the obligation to increase the collective annuity and that any

increases beyond that level were discretionary, in “Her Majesty’s graciousness”.³⁴⁰

[379] After reviewing the historical and cultural context, including the different

perspectives of the Treaty partners, the historical record and the records of the

Treaty Council, the challenges of interpretation, transcription and drafting of the

treaty documents, the post-Treaty record and the principle of the honour of the

Crown, the trial judge returned to the interpretation of the augmentation clause and

the common intention that best reconciled the intentions of the parties.³⁴¹

[380] She found that “[o]n the words of the text alone”, there were three possible

interpretations of the augmentation clause:

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

was increased to that amount, the Crown had no further liability;

³³⁹Stage One Reasons, at para. 406.

³⁴⁰Stage One Reasons, at paras. 406-8.

³⁴¹Stage One Reasons, at paras. 411-58.

Page: 161

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 revenue from the

territory with the collective – to increase the lump sum annuity so long

as the economic condition was met, and the reference to £1 ($4) was a

limit only on the amount that could be distributed to individuals.³⁴²

[381] The trial judge found that, having regard to treaty interpretation principles,

the honour of the Crown and the context in which the Treaties were made, “only

the third interpretation comes close to reflecting the parties’ common intention.”³⁴³

[382] She found that the parties did not intend to cap increases to the annuities at

$4 per person and that:

The best possible interpretation of the parties’ common

intention, the one that best reconciles their interests, is

that the Crown promised to increase the collective

annuities, without limit, in circumstances where the

territory produces an amount as would enable the

Government to do so without incurring loss.³⁴⁴

³⁴²Stage One Reasons, at paras. 459-61.

³⁴³Stage One Reasons, at para. 462.

³⁴⁴Stage One Reasons, at para. 463 (emphasis added).

Page: 162

[383] The common intention, the trial judge said, was that the reference to £1 in

the augmentation clause was “a limit only on the amount that may be distributed

to individuals, and this distributive amount is a portion of the collective lump sum

annuity payable to the Chiefs and their Tribes.”³⁴⁵She found that the “first

interpretation”, which put a £1 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; the parties were and continue to be in an

ongoing relationship.”³⁴⁶

[384] The trial judge found that the “third interpretation” satisfied the goals of the

parties, by sharing the wealth on an “if and when” basis.³⁴⁷This reflected the

Anishinaabe tradition of sharing with others.³⁴⁸While the sharing of revenues was

“novel” for the Crown, it permitted access to the land and resources, limited Crown

liability, and reflected their goal to deal honourably with the Anishinaabe.³⁴⁹

[385] The trial judge identified a “fourth interpretation” proposed by the Huron and

Superior Plaintiffs, which she said the parties did not fully develop.³⁵⁰The fourth

interpretation characterized the £1 amount as a “placeholder” for a temporary or

³⁴⁵Stage One Reasons, at para. 464.

³⁴⁶Stage One Reasons, at para. 465.

³⁴⁷Stage One Reasons, at para. 466.

³⁴⁸Stage One Reasons, at para. 467.

³⁴⁹Stage One Reasons, at para. 469.

³⁵⁰Stage One Reasons, at paras. 455-56.

Page: 163

permanent cap on the collective entitlement; it was not the true extent of the

consideration the parties’ agreed on.³⁵¹The trial judge did not explore that

interpretation any further.

[386] As we will explain, we conclude that the trial judge’s interpretation of the

Treaties was the product of extricable errors of law in the application of the

principles of treaty interpretation. We find that the fourth interpretation, which the

trial judge did not explore in any meaningful way, provides the only reasonable

interpretation consistent with the common intention of both parties. While that

interpretation contemplates an ongoing relationship between the Crown and the

Anishinaabe, and a potential sharing of the wealth of the Treaty lands, it did not

provide for a mandatory and unlimited “fair share” as expressed in the court’s

judgments. Instead, the sharing was intended to take place through the exercise

of Her Majesty’s graciousness.

[387] Before turning to the interpretation of the Treaties, we will briefly summarize

the core principles of treaty interpretation.

³⁵¹Stage One Reasons, at para. 455.

Page: 164

C.

PRINCIPLES OF TREATY INTERPRETATION

[388] The principles applicable to treaty interpretation are not in dispute. Those

principles were expressed in Marshall and were summarized by the trial judge as

follows:

Aboriginal treaties constitute a unique type of agreement and attract

special principles of interpretation;

treaties should be liberally construed and ambiguities or doubtful

expressions should be resolved in favour of the Aboriginal signatories;

the goal of treaty interpretation is to choose from among the various

possible interpretations of common intention the one which best

reconciles the interests of both parties at the time the treaty was signed;

in searching for the common intention of the parties, the integrity and

honour of the Crown is presumed;

in determining the signatories’ respective understanding and intentions,

the court must be sensitive to the unique cultural and linguistic

differences between the parties;

the words of the treaty must be given the sense which they would

naturally have held for the parties at the time;

a technical or contractual interpretation of treaty wording should be

avoided;

Page: 165

while construing the language generously, the court cannot alter the

terms of the treaty by exceeding what “is possible on the language” or

realistic; and

treaty rights of Aboriginal peoples must not be interpreted in a static or

rigid way. They are not frozen at the date of signature. The interpreting

court must update treaty rights to provide for their modern exercise. This

involves determining what modern practices are reasonably incidental to

the core treaty right in the modern context.³⁵²

D.

STANDARD OF REVIEW

(1) Position of the Parties

[389] The parties disagree about the standard of review applicable to the trial

judge’s interpretation of the Treaties.

[390] Ontario submits that the interpretation of treaties ultimately is a legal issue,

reviewable on a standard of correctness, even when informed by findings of fact

that will be reviewable on a deferential standard.

[391] The Huron and Superior Plaintiffs and two of the interveners, Assembly of

First Nations and Biigtigong Nishnaabeg First Nation, argue that treaty

interpretation involves a question of mixed fact and law, analogous to the process

³⁵²Stage One Reasons, at para. 324, citing Marshall, at para. 78.

Page: 166

of contract interpretation that attracts the deferential standard of review adopted in

Sattva.³⁵³

[392] Canada takes no position on the issue.

(2) Analysis

The Marshall Standard of Review

[393] The Supreme Court’s decision in Marshall remains the seminal case on the

applicable standard of review for treaty interpretation.

[394] Marshall’s standard of review analysis drew on the court’s earlier decision

in Van der Peet, where the issue was whether the claimant enjoyed an Aboriginal

right to exchange fish for money or for other goods.³⁵⁴Just as the two-step

common intention process for interpreting a treaty provision involves considerable

fact-finding about the historical and cultural context in which the treaty was made,

so too the “integral to a distinctive culture” test used to assess a claim to an

Aboriginal right involves a factual inquiry into the practices, customs, and traditions

of Aboriginal cultures.³⁵⁵

[395] In Van der Peet, the Supreme Court recognized that appellate review would

engage a consideration of the evidence presented at trial, as well as the findings

³⁵³Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50.

³⁵⁴R. v. Van der Peet, [1996] 2 S.C.R. 507.

³⁵⁵Van der Peet, at paras. 46, 55.

Page: 167

of fact made by the trial judge, and that considerable deference was owed to a trial

judge’s findings of fact.³⁵⁶Nevertheless, the Supreme Court held that a trial judge’s

determination of the scope of Aboriginal rights, based on the facts as found,

involves a question of law to which deference is not owed, stating:

In the case at bar, Scarlett Prov. Ct. J., the trial judge,

made findings of fact based on the testimony and

evidence before him, and then proceeded to make a

determination as to whether those findings of fact

supported the appellant’s claim to the existence of an

aboriginal right. The second stage of Scarlett Prov. Ct.

J.’s analysis — his determination of the scope of the

appellant’s aboriginal rights on the basis of the facts as

he found them — is a determination of a question of law

which, as such, mandates no deference from this Court.

The first stage of Scarlett Prov. Ct. J.’s analysis, however

— the findings of fact from which that legal inference was

drawn — do mandate such deference and should not be

overturned unless made on the basis of a “palpable and

overriding error”. This is particularly the case given that

those findings of fact were made on the basis of Scarlett

Prov. Ct. J.’s assessment of the credibility and testimony

of the various witnesses appearing before him.³⁵⁷

[396] In Marshall, the Supreme Court applied the Van der Peet standard of review

to the interpretation of a provision in an Aboriginal treaty. At issue in that case was

whether a right existed under a 1760 Treaty of Peace and Friendship that enabled

the Mi’kmaq claimant to fish for trade. Writing for the majority, Binnie J. noted that

“[t]he only contentious issues arose on the historical record and with respect to the

³⁵⁶Van der Peet, at paras. 80, 81.

³⁵⁷Van der Peet, at para. 82 (emphasis added).

Page: 168

conclusions and inferences drawn by [the trial judge] from the documents, as

explained by the expert witnesses.”³⁵⁸Binnie J. concluded that “[t]he permissible

scope of appellate review in these circumstances was outlined by Lamer C.J. in R.

v. Van der Peet … at para. 82”, which is reproduced in the paragraph above.³⁵⁹

[397] Binnie J. found that the trial judge erred in interpreting the “truckhouse”

provision of the 1760 Treaty of Peace and Friendship by failing to give adequate

weight to the concerns and perspective of the Mi’kmaq people and by giving

excessive weight to the concerns and perspective of the British, resulting in an

overly deferential attitude to the text of the treaty.³⁶⁰

The Implications of Sattva

[398] Notwithstanding that the Supreme Court has not departed from Marshall’s

standard of review, the Huron and Superior Plaintiffs and some interveners submit

that the Marshall standard must now give way to the more deferential standard

applicable to contract interpretation set out in Sattva by reason of the fact-heavy

³⁵⁸Marshall, at para. 18.

³⁵⁹Marshall, at para. 18.

³⁶⁰Marshall, at paras. 19, 20. Although McLachlin J., writing in dissent, did not expressly address the

issue of the standard of appellate review, in several places her reasons evince the application of a

correctness standard: “The wording of the trade clause, taken in its linguistic, cultural and historical

context, permits no other conclusion” (at para. 96); “I conclude that the trial judge did not err — indeed

was manifestly correct — in his interpretation of the historical record and the limited nature of the treaty

right that this suggests” (at para. 104); and “the trial judge made no error of legal principle. I see no basis

upon which this Court can interfere” (at para. 114).

Page: 169

inquiry into the parties’ common intention involved in the two-step treaty

interpretation process.

[399] In Sattva, the Supreme Court discarded the historical approach of classifying

the interpretation of a contract as a question of law for purposes of appellate review

in favour of more deferential treatment as a question of mixed fact and law, under

which appellate intervention is confined to demonstrated palpable and overriding

errors.³⁶¹Sattva’s deferential standard of review is subject to two exceptions:

(i) Deference does not apply where it is possible to identify an extricable

question of law from within a question of mixed fact and law, in which case

the correctness standard applies to that extricable question.³⁶²In the context

of contractual interpretation, extricable questions of law include the

application of an incorrect principle, the failure to consider a required

element of a legal test, and the failure to consider a relevant factor.³⁶³In the

context of treaty interpretation, extricable questions of law include an

incorrect application of the numerous treaty interpretation principles

enumerated in Marshall, at para. 78; and

³⁶¹Sattva, at para. 50. See also Corner Brook (City) v. Bailey, 2021 SCC 29, 460 D.L.R. (4th) 169, at

para. 20.

³⁶²Sattva, at para. 53.

³⁶³Sattva, at para. 53; Corner Brook, at para. 44.

Page: 170

(ii) The other exception is that identified by the Supreme Court in Ledcor.³⁶⁴

There, the court treated as a question of law the interpretation of a standard

form contract, where the interpretation at issue is of precedential value, and

there is no meaningful factual matrix that is specific to the parties to assist

the interpretation process.³⁶⁵

[400] The Huron and Superior Plaintiffs urge this court to follow the reasons on

the standard of review of the dissenting judge in the Court of Appeal for British

Columbia’s decision in West Moberly.³⁶⁶That case involved the interpretation of a

treaty’s description of the boundary of a particular tract of land. The dissenting

judge’s approach deviates from Marshall and would apply a deferential standard

of review to legal inferences or conclusions drawn from findings of historical fact:

In my view, the principles outlined in Sattva provide

guidance in the approach to be taken to the standard of

review with respect to treaty interpretation. Contract and

treaty interpretation involve analogous (though not

identical) considerations. Like contract interpretation,

treaty interpretation involves the application of legal

principles of interpretation to the text of the written treaty,

considered in light of the factual matrix. For historical

treaties, that matrix includes the historical and cultural

context of the time. Thus, the standard of review that

applies to treaty interpretation is overriding and palpable

³⁶⁴Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23.

³⁶⁵Ledcor, at para. 24.

³⁶⁶West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232, leave to

appeal refused, [2020] S.C.C.A. No. 252.

Page: 171

error unless the error alleged involves an extricable

question of law.³⁶⁷

[401] The dissenting judge’s approach did not find favour with the majority in West

Moberly, who applied a standard of review echoing that set out in Marshall, stating:

It is common ground that no deference is owed to judicial

conclusions stemming from legal error. A correctness

standard of review applies to a finding of the trial judge

that “can be traced to an error in his or her

characterization of the legal standard”: Housen at para.

33. Similarly, no deference is owed to the legal

conclusions a trial judge makes by applying the law to a

historical record: Caron v. Alberta, 2015 SCC 56 at para.

61.

However, a traceable legal error must, of course, be

identifiable to merit appellate interference on this

correctness standard….³⁶⁸

[402] It is difficult to reconcile the dissent in West Moberly with a decision the

Supreme Court released just over a year after Sattva, the decision in Caron.³⁶⁹

Caron did not involve issues of Aboriginal rights or treaty rights; it considered the

issue of whether a post-Confederation constitutional document, the 1870 Rupert’s

³⁶⁷West Moberly, at para. 130.

³⁶⁸West Moberly, at paras. 363-64 (emphasis added).

³⁶⁹Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511. The dissent’s approach in West Moberly also

runs counter to the view expressed by this court in a treaty interpretation case, Keewatin v. Ontario

(Natural Resources), 2013 ONCA 158, 114 O.R. (3d) 401, at para. 158, aff’d Grassy Narrows First Nation

v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447. Although not finding it necessary to

engage in a detailed consideration of the applicable standard of review, this court stated that as the trial

judge’s findings of fact were mingled with her assessment of the effect of legislation and principles of

treaty interpretation, “there may be an argument that some or all of her findings attract a less deferential

standard”: at para. 158.

Page: 172

Land and North-Western Territory Order (U.K.) (the “1870 Order”), created a right

to legislative bilingualism in the province of Alberta.

[403] In the course of its interpretation of the 1870 Order, the majority of the court

found guidance in its jurisprudence on Aboriginal rights and treaties and affirmed

the continued application of the standard of review analysis in Van der Peet and

Marshall, stating:

While we take no issue with the factual findings of the

provincial court judge regarding the negotiations

between the delegates and Canada, we disagree with his

legal conclusion that the negotiations resulted in a pact

with Canada to establish legislative bilingualism in all of

the annexed territories (para. 354). In this respect, there

is a helpful distinction drawn in Aboriginal rights

jurisprudence between a trial judge’s findings of fact on

historical matters, which are entitled to deference, and

the legal inferences or conclusions that a trial judge

draws from such facts, which are not. As Lamer C.J.

explained in R. v. Van der Peet, [1996] 2 S.C.R. 507, “[the

trial judge’s] determination of the scope of the appellant’s

aboriginal rights on the basis of the facts as he found

them . . . is a determination of a question of law which,

as such, mandates no deference from this Court” (para.

82; see also R. v. Marshall, [1999] 3 S.C.R. 456, at para.

18; and R. v. Sappier, 2004 NBCA 56, 273 N.B.R. (2d)

93, at para. 76). In our view, the same distinction applies

with respect to the historical factual findings of the

provincial court judge in this case, and the legal

inferences he draws on the basis of these facts.³⁷⁰

³⁷⁰Caron, at para. 61 (emphasis added).

Page: 173

[404] Caron confirms that, notwithstanding Sattva’s modification of the standard

of review for contract interpretation, the Marshall standard of review remains in

place, including the principle that legal inferences or conclusions regarding the

meaning of a historical treaty provision drawn by a trial judge from historical facts

are not entitled to deference on appellate review.³⁷¹

Policy Considerations

[405] In our view, two policy considerations also support the application of the

Marshall standard of review in this case.

[406] First, the Huron and Superior Plaintiffs’ efforts to functionally analogize

treaty interpretation with contract interpretation ignores the distinctive nature of

Aboriginal treaties under Canadian law. Our jurisprudence regards a treaty

between Canada and a First Nation as a unique, sui generis agreement, which

attracts special principles of interpretation, and possesses a unique nature in that

the honour of the Crown is engaged through its relationship with Aboriginal

people.³⁷²As put by the late Peter W. Hogg, an Aboriginal treaty “is not a contract,

³⁷¹The American approach to standard of review of “Indian” treaty interpretation is similar: the

interpretation of an Indian treaty is a question of law reviewed on a de novo standard, while a trial judge’s

findings of historical fact, including the treaty negotiators’ intentions, are reviewed for “clear error”: see

e.g., United States v. State of Washington, 157 F.3d 630 (9th Cir. 1998), at p. 642, cert. denied 119 S.Ct.

1376 (1999); Richard v. United States, 677 F.3d 1141 (Fed. Cir. 2012), at pp. 1144-45.

³⁷²R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Marshall, at para. 78; and R. v. Desautel, 2021 SCC 17,

456 D.L.R. (4th) 1, at para. 25.

Page: 174

and is not subject to the rules of contract law. It is an agreement between the

Crown and an aboriginal nation.”³⁷³

[407] The uniqueness of Aboriginal treaties stems, in part, from their public,

political nature in establishing and shaping the on-going relationship between

political communities. Professor Dwight Newman has eschewed analogizing

Aboriginal treaties to contracts preferring, instead, to describe them as covenants,

a concept he thinks better captures their broader public, political role as

foundational documents that establish the bases of relations between Aboriginal

peoples and the larger Canadian community. Professor Newman writes:

A covenantal conceptualization of treaties would

essentially see them as agreements between political

communities expressing the terms of the ongoing

evolution of relationships between those communities.

To see them as such does not mean ignoring their

express terms. Nonetheless, a covenant, in this sense,

differs from a contract in several key ways. It concerns

the establishment of the terms of a long-term relationship

rather than a deal over more specifically defined matters.

It has a broad, typically non-commercial orientation

rather than a narrow, typically commercial purpose. It

recognizes the intrinsic value of the other party rather

than

having

a

fundamentally

instrumentalist

orientation.³⁷⁴

³⁷³Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada Ltd.,

2019), at § 28.6,

³⁷⁴Dwight Newman, “Contractual and Covenantal Conceptions of Modern Treaty Interpretation” (2011) 54

S.C.L.R. (2d) 475, at p. 486.

Page: 175

[408] Second, as this court observed in Keewatin, treaties are solemn agreements

that are intended to last indefinitely.³⁷⁵Indeed, the annual annuities in both

Robinson Treaties are described as “perpetual” in nature.

[409] In Ledcor, the precedential value of the interpretation of a provision in a

standard form contract informed, in part, the court’s adoption of a correctness

standard of review. So, too, precedent is more likely to be controlling in the

interpretation of a treaty than in an ordinary contract, especially for the Robinson

Treaties that call for revisiting the amount of the annuities “from time to time”. While

a specific treaty may only affect a defined group of First Nations, by their nature

treaties concern not only persons who lived in the past and are living in the present,

but also future generations to come of both Aboriginal and non-Aboriginal persons.

[410] The perpetual, multi-generational nature of treaty provisions makes the

interpretation of their provisions of “interest to judges and lawyers in the future”, as

put by Ledcor.³⁷⁶Consequently, the degree of generality or precedential value of

treaty interpretation or, put negatively, the lack of its “utter particularity”, moves the

question of treaty interpretation across the line from a question of mixed fact and

law to one of law and calls for a consistency of interpretation that is the objective

of a standard of correctness.³⁷⁷

³⁷⁵Keewatin, at para. 137.

³⁷⁶Ledcor, at paras. 39, 42 and 43.

³⁷⁷Ledcor, at paras. 39, 41 and 42.

Page: 176

(3) Conclusion

[411] For these reasons, when reviewing the trial judge’s interpretation of the

Robinson Treaties, we shall apply the standard of review set out in Marshall.

E.

ANALYSIS OF THE TRIAL JUDGE’S INTERPRETATION OF THE

TREATIES

[412] The primary issue at the trial was the interpretation of the Robinson Treaties.

The trial judge called it “[t]he focus of this hearing and the primary dispute”.³⁷⁸The

same is true of this appeal. Mr. Schachter, counsel for the Superior Plaintiffs, called

treaty interpretation the “main event”. We agree with that characterization.

[413] To provide context for the following analysis, we note here our respectful

point of departure from our colleagues’ reasons. We conclude that the trial judge

erred in finding that the Robinson-Huron and Robinson-Superior Treaty annuities

were a “collective entitlement” containing within them a separate “distributive

amount” payable to individuals. That is, the trial judge erred when she expressly

found that the collective entitlement was greater than the sum of the individual

amounts that were to be distributed to members of the Robinson-Huron and

Robinson-Superior Treaty First Nations.

[414] This bifurcation of the annuities led to the trial judge’s conclusion that the £1

per person “cap” applied only to the individual distributive amount and that there

³⁷⁸Stage One Reasons, at para. 340.

Page: 177

was no cap on the collective entitlement, which was to be augmented, as

expressed in her judgments, to reflect in the annuities a fair share of the value of

the resources, including the land and water in the Treaties’ territory.

[415] In our respectful view, this conclusion was the product of errors of law in the

interpretation of the Treaties. The only reasonable interpretation is that there was

only one annuity under each Treaty, which was to be (and in fact was historically)

distributed in its entirety to the members of the First Nations. That annuity was

subject to an aggregate “cap” of £1 per person, but, in our view, this was a “soft

cap” and was subject to further increases through the exercise of Her Majesty’s

graciousness.

[416] The errors of law were as follows:

failing to consider the plain meaning of the Treaties’ text;

finding ambiguity where there was none;

going beyond a generous interpretation of the Treaties by exceeding

what was possible on their language; and

failing to consider the only reasonable interpretation that reconciled the

common intention of both parties.

[417] In this section, we will examine each of these errors and will explain how

they led the trial judge to an unreasonable interpretation of the Treaties. We will

identify a more reasonable interpretation, which was identified by the trial judge

Page: 178

herself, but which she failed to explore. We refer to this interpretation as the “fourth

interpretation”.

[418] In the next section, we will explain why the fourth interpretation is consistent

with the parties’ common intention and more faithful to the historical record than

the interpretation advanced by the trial judge. As we will explain, the fourth

interpretation is grounded in the words of the Treaties, and gives meaning to “Her

Majesty’s graciousness”. It gives the Crown discretion as to when and how it will

give effect to the Treaties’ promises. But that discretion must be exercised. It

cannot be ignored. The Crown’s failure to exercise its discretion for 150 years is a

failure to diligently implement the Treaty promise. This failure runs contrary to the

principle of the honour of the Crown and s. 35 of the Constitution Act, 1982. In its

role as guardian of the Constitution, this court must ensure the fulfillment of the

Crown’s long-neglected promise to the beneficiaries of the Robinson Treaties.³⁷⁹

(1) First Error: Failing to Consider the Plain Meaning of the Treaties’

Texts

[419] In our view, the trial judge erred in law in the application of the principles of

treaty interpretation because she never gave the language of the Robinson

Treaties a fair opportunity to speak. This was not a case in which some terms of

the Treaties were found in or modified by oral promises extrinsic to the Treaty

³⁷⁹Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at

para. 153

Page: 179

documents. Moreover, Robinson was at pains to ensure that the Treaties were

orally interpreted from English to Anishinaabemowin before they were signed. The

words of the Treaties are therefore a central component of the interpretation

exercise in this case.

[420] As Binnie J. observed in Marshall: “The starting point for the analysis of the

alleged treaty right must be an examination of the specific words used in any

written memorandum of its terms.”³⁸⁰To the same effect, Cory J. stated in Badger:

Treaties are analogous to contracts, albeit of a very

solemn and special, public nature. They create

enforceable obligations based on the mutual consent of

the parties. It follows that the scope of treaty rights will be

determined by their wording, which must be interpreted

in accordance with the principles enunciated by this

Court.³⁸¹

[421] The need to begin the analysis with the “facial meaning” of the treaty

language was also highlighted by McLachlin J. (dissenting, but not on this point) in

Marshall:

The fact that both the words of the treaty and its historic

and cultural context must be considered suggests that it

may be useful to approach the interpretation of a treaty

in two steps. First, the words of the treaty clause at issue

should be examined to determine their facial meaning, in

so far as this can be ascertained, noting any patent

ambiguities and misunderstandings that may have arisen

from linguistic and cultural differences. This exercise will

lead to one or more possible interpretations of the

³⁸⁰Marshall, at para. 5.

³⁸¹R. v. Badger, [1996] 1 S.C.R. 771, at para. 76 (emphasis added).

Page: 180

clause.… The objective at this stage is to develop a

preliminary, but not necessarily determinative,

framework for the historical context inquiry, taking into

account the need to avoid an unduly restrictive

interpretation and the need to give effect to the principles

of interpretation.³⁸²

[422] With this approach in mind, we return to the pertinent language of the

Treaties, set out in the joint reasons, which we repeat for convenience:

The Consideration Clause (Robinson-Huron Treaty):

[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…. [Emphasis added.]

The Augmentation Clause (Robinson-Huron Treaty):

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 as 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-

³⁸²Marshall, at para. 82 (emphasis added).

Page: 181

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. [Emphasis added.]

[423] The trial judge interpreted these provisions to mean that the Treaties

promised a “collective” annuity, which had within it an “individual” or “distributive”

component. As noted earlier, her formal judgments stipulated that the Crown was

required to increase the annuity, without limit, “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”.³⁸³The judgments added that the Crown was

required to consult with the Treaty parties “to determine what portion, if any, of the

increased annuity amount is to be distributed by the Crown to the individual Treaty

rights holders in addition to the $4 per person per year they are already being

paid”.³⁸⁴

[424] While the trial judge purported to follow the two-step approach in Marshall,

she never explicitly examined the augmentation clause to ascertain its facial

meaning. Nor did she identify any patent ambiguities or misunderstandings that

might have arisen from linguistic or cultural differences.

[425] We make the following preliminary observations about the Treaty language:

³⁸³Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage One Partial Judgment,

at para. 1(d).

³⁸⁴Huron Action Stage One Partial Judgment, at para. 1(e); Superior Action Stage One Partial Judgment,

at para. 1(e).

Page: 182

 the consideration paid by the Crown in exchange for the surrender of

the Treaty territories had two components – an immediate payment of

£2000 and a perpetual “annuity” of £500 under the Robinson-Superior

Treaty and £600 under the Robinson-Huron Treaty – the amounts

were different because the population of the Huron territories was

greater;

 the annuity was to be delivered to the Chiefs and their Tribes at a

“convenient season of each summer”;

 the Crown promised to augment the annuity from time to time, if the

land proved sufficiently profitable to enable the government to do so

without incurring loss;

 it was a condition of the augmentation (“provided that…”) the amount

paid to each individual could not exceed £1 in any one year or “such

further sum as Her Majesty may be graciously pleased to order”; and

 there was a second condition that the annuity would be “diminished”

proportionately if the number of beneficiaries fell below two-thirds of

the population at the time of the Treaties.

[426] It is noteworthy that the financial terms of the annuity were consistent with

Robinson’s instructions: an initial lump-sum payment of £2,000 for each of the

Huron and Superior parties (within the total £5,000 limited provided in the Order In

Council (“OIC”)) and annuities in the total amount of £1,100 which were consistent

Page: 183

with the income from the balance of the notional £25,000 fund made available to

Robinson under the April 16, 1850 OIC.

[427] The plain meaning of the augmentation clause is that the annuity was a

perpetual one in the stated amount, payable to the Chiefs and their Tribes. It would

be increased if economic conditions warranted. The maximum increase would be

“capped” at £1 ($4) per person or such further sum as “Her Majesty may be

graciously pleased to order”. The capped amount would be paid to all Treaty

beneficiaries, even if the population grew, as in fact occurred. The annuity would

be proportionately reduced if the Anishinaabe population fell below two-thirds of

the stated amount.

[428] On a fair and facial reading, the augmentation clause did not create an

annuity payable to the “Chiefs and their Tribes” as a “collective” and an unspecified

“individual” component payable to each Treaty beneficiary. The reference to

“individual” was not for the purpose of creating a separate payment to individuals.

It was simply the means of setting a cap on the amount of future increases to the

annuity, recognizing that the population might grow and that the total amount of

the annuity would be required to grow with it, thereby increasing the Crown’s

overall obligation. After the cap was reached, further increases in the annuity could

be made through the exercise of “Her Majesty’s graciousness”.

Page: 184

[429] The trial judge came close to appreciating this when she correctly described

the words “provided that the amount paid to each individual shall not exceed the

sum of one pound Provincial Currency in any one year” as a “condition” of the

increase of the annuity.³⁸⁵In our view, that is exactly what it was – a condition that

was intended to limit the amount by which the annuity could be increased. It was

mirrored by a condition requiring a reduction of the amount of the annuity if the

population fell. Both conditions (“provided” and “provided further”) applied to the

total amount of the annuity – one condition required the annuity to be increased

and the other required its reduction.

[430] Instead of giving the condition its obvious meaning, however, the trial judge

treated it as creating a separate payment to individuals. This distorted its meaning

and wholly ignored the second condition of the increase, that the annuity would be

reduced if the population fell below a certain percentage of its number at the time

of the Treaties.

[431] One consequence of this distortion of the Treaties’ language is that the trial

judge failed to give any effect to the “Her Majesty’s graciousness” provision of the

augmentation clause. That provision was not just flowery language – it made it

clear that the £1 per individual “cap” on the annuity was a “soft cap”. The intent, as

conveyed by the Treaties’ language, was that increases above £1 per person could

³⁸⁵Stage One Reasons, at para. 403.

Page: 185

be made in the Crown’s discretion and would be based on the revenues of the

Treaty territories. In the context of the treaty negotiations, the invocation of “Her

Majesty’s graciousness” would have played a key role in bridging the gap between

Robinson’s limited spending power and the demands of the Huron leaders for a

$10 (£4½) annuity, which was the norm for treaties in Upper Canada.

[432] In dismissing the import of “Her Majesty’s graciousness”, the trial judge

stated that the Anishinaabe could not have understood this provision even if it had

been translated, and that it could not have informed their common intention. This

was based on a misapprehension of the evidence and was inconsistent with the

trial judge’s other findings.

[433] The trial judge said that the witness, Elder Corbiere, who translated the

Treaties’ from English to Anishinaabemowin and then back to English, testified that

there was no way to translate “as Her Majesty may be graciously pleased to

order”.³⁸⁶In fact, Elder Corbiere testified that she translated the phrase to mean

“and even more will be given to the Anishinaabek if the Gischpin Gchi-Gimaa Kwe

[‘Big Chief Lady’] has a good heart and has a mind to do so.” Elder Corbiere

testified that while she could not translate “graciously”, the Anishinaabe expected

leaders to be generous. The translation that she provided, “if [the Queen] has a

³⁸⁶Stage One Reasons, at para. 446.

Page: 186

good heart and has a mind to do so”, reasonably conveys the meaning of “as Her

Majesty may be graciously pleased to order”.

[434] Moreover, a few paragraphs later in her reasons, in the context of

considering the fourth interpretation advanced by the Huron and Superior Plaintiffs,

the trial judge observed that it was possible that once the general principles of the

Treaties were agreed on, the Anishinaabe, especially those represented by Chief

Peau de Chat, were content to permit the Crown to set the amount of the annuity

payments, understanding that Her Majesty’s graciousness would be exercised

honourably to ensure that the annuities reflected the value of land, to the extent

that the Crown would not incur a loss.³⁸⁷However, in spite of the fact that this

interpretation gave meaning to “Her Majesty’s graciousness”, the trial judge gave

no consideration to it in her ultimate analysis of which interpretation best reconciled

the parties’ common intention.

[435] As we will explain below, the plain meaning of the augmentation clause

reconciles the common intention of the parties and is consistent with both the pre-

Treaty and post-Treaty record.

³⁸⁷Stage One Reasons, at para. 456.

Page: 187

(2) Second Error: Finding Ambiguity Where There Was None

[436] Whether a judge is interpreting a contract, a statute or a treaty, the principles

of interpretation seek to reconcile two or more reasonable interpretations available

on the language of the document. As this court observed in Chilton, a case

involving an insurance policy, “[t]he ambiguity principle … resolves conflicts

between two reasonable but differing interpretations…. The court should not strain

to create ambiguity where none exists.”³⁸⁸

[437] The trial judge’s finding of ambiguity is the product of a strained and illogical

reading of the Treaties. Her error can be readily traced to para. 405 of her reasons,

where she posited that the reference to “individual” in the phrase, “provided that

the amount paid to each individual” in the augmentation clause was a “missing

link”, because there was no other reference in the Treaties to payments to

individuals. She explained that:

Because the initial words of the consideration clause

[“paid and delivered to the said Chiefs and their Tribes at

a convenient season of each year”] create a perpetual

annuity in the form of a lump sum paid to the Chiefs and

their Tribes, there is an obvious missing link to the last

sub-clause where there is reference to individual

payments. There is no other reference in the text of the

Treaties that mentions payments to individuals.³⁸⁹

³⁸⁸Chilton v. Co-Operators (1997), 143 D.L.R. (4th) 647 (Ont. C.A.), at p. 654.

³⁸⁹Stage One Reasons, at para. 405.

Page: 188

[438] The trial judge said that this created a “real risk of misunderstanding or

different understandings.” She called this “the first and most confounding

ambiguity”, although she did not identify any other ambiguity in the language of the

augmentation clause.

[439] After finding a “missing link”, the trial judge used the reference to £1 per

individual to find that the annuity contained both a “collective” payment and an

individual “distributive” payment. In our view, there was a good reason why the

Treaties contained no other reference to individuals. As with other treaties, the

Robinson Treaties’ annuity was expressed as a lump sum, but it was to be

distributed to the individual members of the Treaty First Nations, either in cash or

in goods. As we have observed, this is precisely what occurred in the case of the

Robinson Treaties for 170 years. The reference to individuals was solely for the

purpose of creating a “cap” on the collective annuity – that is, a cap of £1 per

person multiplied by the number of Treaty beneficiaries at any given time. Having

regard to the province’s desperate financial circumstances, it would have made no

sense for Robinson to promise the Anishinaabe an unlimited collective annuity,

while at the same time limiting individual payments.

[440] Instead of examining the words of the Treaties to seek a reasonable and

unambiguous interpretation, the trial judge created ambiguity and ultimately

adopted an interpretation that was unreasonable.

Page: 189

[441] In support of her conclusion that the reference to £1 per person was not

intended as a “cap” on the annuity, the trial judge noted that increases and caps

had no precedent in earlier treaties.³⁹⁰She continued:

In any event, it is more likely that Robinson, under some

pressure from some Chiefs at the Council to ear mark

some funds for individual distribution and in compliance

with the Colborne Policy that limited his ability to make

cash payments to individuals, set a low cap on the

individual distributive amount (the £1 or $4 cap.) Her

Majesty was left with the discretion to increase this cap

should future circumstances permit.³⁹¹

[442] The difficulty with this speculation is that there is no evidence that Robinson

was under pressure at the Treaty Council to earmark funds for individual

distribution. This speculation also presupposes that there was a recognition at the

Treaty Council that the annuity was intended to be a “collective” amount from which

individual “distributive” shares were to be carved out. There is no evidence of any

such discussion.

[443] In their report, Vidal and Anderson had observed that “money payments are

highly prejudicial to the interests of the Indians”. As noted earlier, they had

recommended that, apart from the first payment when the treaty was signed,

subsequent payments should be made in clothing, provisions, goods, and

implements and that provision should also be made for schools. Robinson did not

³⁹⁰Stage One Reasons, at para. 454.

³⁹¹Stage One Reasons, at para. 454.

Page: 190

follow this recommendation. As the trial judge noted, the Colborne Policy required

that annuities be accessed through a requisition approval system that was still in

place in 1850.³⁹²Robinson could easily have required that the Treaty annuities be

distributed in goods in compliance with the Colborne Policy if he wished to do so.

Not only did he not do so, as we have noted, the annuity was paid in cash to

individual members of the Robinson-Superior Treaty First Nations from the very

outset and to members of the Robinson-Huron Treaty First Nations from 1855

onwards.

[444] In summary, instead of seeking the plain or “facial” meaning of the Treaties,

the trial judge sought ambiguity. Her finding of ambiguity led to speculation

concerning the reference to “individuals”, which was at the root of her finding that

the Treaties had both a collective component and an individual one, with only the

former being subject to augmentation.

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

the Treaties

[445] It is a well-settled principle of treaty interpretation that a generous

construction of treaty language does not permit the court to re-write the treaty.³⁹³

³⁹²Stage One Reasons, at para. 108.

³⁹³Badger, at para. 76; Keewatin, at para. 151; and Marshall, at para. 14. See also R. v. Horseman,

[1990] 1 S.C.R. 901, at p. 908; Sioui, at p. 1069.

Page: 191

[446] The trial judge’s interpretation of the Treaties as giving the Anishinaabe a

“fair share” of the value of the Treaty territory went beyond a generous construction

of the Treaties and gave effect to modern concepts of fairness and generosity that

are not found on either a fair reading of the Treaties or in a balanced assessment

of the common intention of the parties.

[447] One such modern concept of fairness is articulated by Professor Michael

Coyle, who advocates for a “fair sharing” of the economic benefits that flow from

the development of treaty lands, given the “special, even sacred, bond between

the first peoples of Canada and the Crown.”³⁹⁴After all, as Professor Coyle writes,

this special bond “enabled the creation and settlement of this country”.³⁹⁵Coyle

and others argue that courts and governments should re-adjust their conceptions

of treaties, and “re-imagine” the treaty relationship.

[448] In our view, it is unnecessary to re-imagine the Robinson Treaties. What is

necessary is to hold the Crown to the promises it has neglected for more than 150

years. That can be done through an interpretation that is grounded in the words of

the Treaties and best reflects the parties’ common intention at the time the Treaties

³⁹⁴Michael Coyle, “As Long as the Sun Shines: Recognizing that Treaties were Intended to Last”, in John

Borrows and Michael Coyle, eds., The Right Relationship: Re-imagining the Implementation of Historical

Treaties (Toronto: University of Toronto Press, 2017) 39, at p. 41.

³⁹⁵Coyle, at p. 41.

Page: 192

were signed – not by reading more into the words of the Treaties than the Treaties’

partners could reasonably have contemplated.

[449] The Robinson Treaties, which hold a unique place in the historical treaties,

expressly contemplated that the Treaty relationship would be a continuing one,

which would be periodically renewed and refreshed, having regard to the needs of

the Anishinaabe and the means of the Crown.

[450] As we will explain, the fourth interpretation, coupled with the honour of the

Crown, provides a basis for the augmentation of the annuities in a manner that

renews the Treaty relationship and promotes reconciliation. This calls for periodic

reconsideration of the Treaties’ annuities in consultation with the Treaties’

beneficiaries.

(4) Fourth Error: Failing to Consider the Only Interpretation that

Reconciled Both Parties’ Intentions

[451] In Marshall, Binnie J. referred to the “bottom line” of treaty interpretation as

the court’s obligation to choose from among the various possible interpretations of

the common intentions, at the time the treaty was made, the one that best

reconciles the First Nations’ interests and those of the Crown.³⁹⁶

³⁹⁶Marshall, at para. 14.

Page: 193

[452] As we noted earlier, the trial judge observed that “[o]n the words of the text

alone”, there were three possible interpretations of the augmentation clause.³⁹⁷

They can be summarized as follows:

 an annuity capped at £1 per person;

 an obligation to make further orders above £1 per person, based on

the “Her Majesty’s graciousness” clause, when economic

circumstances permitted; or

 a “collective promise to share the revenues from the territory with the

collective”, whenever it was possible to do so without loss, with the £1

“cap” being a limit only on the amount payable to individuals.³⁹⁸

[453] In our view, none of these interpretations were available on a fair reading of

the Treaties’ language.

[454] The first interpretation is unreasonable because a “hard cap” gives no effect

to the “Her Majesty’s graciousness” clause, which imports a discretion to increase

the annuity above $4 per person. The second interpretation is equally

unreasonable because it suggests the Crown was under an obligation to increase

the annuity if circumstances permitted, based on Her Majesty’s graciousness. The

existence of an obligation is inconsistent with Crown discretion. For the reasons

³⁹⁷Stage One Reasons, at para. 459.

³⁹⁸Stage One Reasons, at paras. 459-61.

Page: 194

we have identified above, the third interpretation is a strained and illogical

interpretation of the Treaties and exceeds what is possible on their language.

[455] In our respectful view, the fourth interpretation, which the trial judge

identified but never pursued, is supported by the evidence on common intention to

a much greater extent than any of the three interpretations identified by the trial

judge.

[456] The trial judge noted that the Huron and Superior Plaintiffs had put forth an

alternative interpretation of the £1 amount in the Treaties:

The Plaintiffs submit that, alternatively, if the reference to

a £1 amount is interpreted as a temporary or permanent

cap on the whole of the collective entitlement, the most

plausible explanation why Robinson chose a £1 amount

was that Robinson was using the £1 amount as a

“placeholder”, as per other treaties made previously in

Upper Canada. In other words, the £1 amount was not

the true extent of the consideration, but simply a

placeholder amount.

The parties did not fully develop this argument; however,

as an alternative characterization of the £1 amount, it has

a certain logic. Once the general principles of the Treaty

were agreed, the First Nation parties, especially those

represented by Chief Peau de Chat, were content to

permit the Crown to set [the] amount of the annuity

payments,

understanding

that

Her

Majesty’s

graciousness would be exercised honourably to ensure

that the annuities reflected the value of land, to the extent

that the Crown would not incur a loss.³⁹⁹

³⁹⁹Stage One Reasons, at paras. 455-56 (emphasis added).

Page: 195

[457] The trial judge did not fully consider this interpretation, apparently because

the parties did not develop it, but she clearly thought there was a “certain logic” to

it. Leaving aside the “placeholder” characterization, which was speculative, this

interpretation is consistent with the £1 amount being a “soft cap”. It also gives real

meaning to “Her Majesty’s graciousness” in the context of the augmentation

clause.

[458] As we will explain in the next section, the fourth interpretation not only best

reconciles the parties’ common intention, it is also most consistent with the

historical record.

F.

RECONCILING THE PARTIES’ INTENTIONS IN A MANNER

CONSISTENT WITH THE HISTORICAL RECORD

[459] The fourth interpretation reconciles the intentions of both parties at the time

the Treaties were signed. The Crown realized its pressing objective of opening up

the territories for mineral development and did so at a cost that its beleaguered

Treasury could bear. The “soft cap” (a characterization we would employ rather

than “placeholder”) limited the Crown’s immediate exposure to a modest annuity,

but gave it the discretion to augment the annuity in excess of £1 per person in the

future, if the territories proved profitable. From Robinson’s perspective, as the trial

judge noted when considering the fourth interpretation, this would satisfy the

expectations of the Anishinaabe, while “at the same time, limit the Crown’s

financial exposure and not impose an unreasonable administrative burden” on the

Page: 196

Crown.⁴⁰⁰The “administrative burden” referred to the need for a strict accounting

of the revenues from the territories.

[460] On the Anishinaabe side, many of the Chiefs at the Treaty Council were

prepared to follow Chief Peau de Chat’s lead and trust in the “Great Mother” to act

fairly toward her “children”. The dissenting Huron Chiefs, Shingwaukonse and

Nebenaigoching, only signed their Treaty when it became apparent that the

Superior Chiefs had accepted Robinson’s proposal and the other Huron Chiefs

were prepared to follow their lead. Faced with the prospect of no cash payment

and no annuity if they did not accept Robinson’s offer, the promise of future

increases in the annuity up to £1 if the land proved profitable and additional

increases in Her Majesty’s graciousness, helped bridge the gap between the

Chiefs’ demands and the amount of the initial annuity.

[461] While it is clear that Chiefs Shingwaukonse and Nebenaigoching would have

preferred a more generous annuity, it is also clear that they ultimately accepted

what they were offered, relying on the Crown to augment the annuity in a liberal

and just manner, as the Treaties promised. The Anishinaabe’s reliance on the

Queen’s generosity is consistent with the uncontroverted evidence that the

Anishinaabe understood the “Great Mother” as a generous leader, who would

⁴⁰⁰Stage One Reasons, at para. 457.

Page: 197

provide for her “children’s” needs and would share in the bounty of their land, rather

than keep it to herself.

[462] Robinson would have appreciated that relationship of trust and knew that

the reference to Her Majesty’s intention to deal “liberally and justly” with her

subjects would reflect Anishinaabe perceptions of a good leader. In the words of

the trial judge, again referring to the fourth interpretation, the Anishinaabe,

especially those represented by Chief Peau de Chat, understood that “Her

Majesty’s graciousness would be exercised honourably to ensure that the

annuities reflected the value of the land, to the extent that the Crown would not

incur a loss.”⁴⁰¹

[463] The fourth interpretation also satisfies the trial judge’s concern that both the

Crown and the Anishinaabe expected to be in an ongoing relationship,

characterized by reciprocity, renewal and respect. The Anishinaabe may not have

understood the legal niceties of the Royal Prerogative or the honour of the Crown

but they knew, from their long relationship with the Crown, their shared language

of kinship and the customs associated with treaty-making, that the Robinson

Treaties were intended to renew their longstanding relationship with the Crown.

The Crown’s express Treaty assurance of its desire to treat the Anishinaabe

liberally and justly, the promise of future augmentation of the annuity if the land

⁴⁰¹Stage One Reasons, at para. 456.

Page: 198

proved profitable and the invocation of Her Majesty’s graciousness, can only be

seen, in this context, as an assurance to the Anishinaabe that the Treaty

relationship with the Crown would not only endure, but would be periodically

renewed.

[464] While the concept of future revenue sharing, subject to a soft “cap”, was not

to be found in Robinson’s instructions, he did keep within the financial authority he

had been given as regards the cash payments and the amount of the annuities.

He plainly regarded a modest increase of the annuity to £1, an amount less than

one half of the annuities paid in the fertile lands to the south, “if and when” the net

revenues were sufficient, as something that was so reasonable that he felt

confident it would be accepted by the Executive Committee of which he was a

member. The “Her Majesty’s graciousness” clause provided the Crown with

discretion to increase the annuities if it could do so without loss and assured the

Anishinaabe that a “liberal and just” Sovereign would share the wealth of the land

with them if and when it was possible to do so.

[465] The fourth interpretation is also consistent with the evidence on the parties’

common intention to include an annuity in the Treaties. Both the Vidal-Anderson

Report and Robinson’s instructions, set out in the April 16, 1850 OIC,

contemplated payment of an annuity. The Anishinaabe were familiar with the use

of annuities in southern treaties. Some Anishinaabe leaders based their demands

on the $10 per person annuity that had been paid in exchange for the cession of

Page: 199

arable lands in the south of Upper Canada. The subject was discussed both before

the treaty negotiations and at the Treaty Council, where both Chiefs

Shingwaukonse and Nebenaigoching spoke about annuities and compared

Robinson’s offer to the annuities that were being paid elsewhere in Upper Canada

($10) and in the United States (significantly more). Chief Peau de Chat originally

sought an even higher annuity, asking for $30 per person.

[466] There is nothing in the record of the Treaty Council to indicate that the

Anishinaabe were seeking compensation in any form other than a traditional

annuity or that Robinson was under pressure to earmark funds for individual

distribution. It is true that the Treaty records are incomplete because the record of

the speeches made by the Anishinaabe Chiefs have been lost. Nevertheless,

Robinson’s detailed treaty diary did not mention either demands for a “share” of

the wealth of the territories or an individual “distributive” share. The Treaty Council

demands of Chiefs Shingwaukonse and Nebenaigoching focused on the amount

of the annuities traditionally paid in the south of Upper Canada or in the United

States.

[467] The trial judge suggested that an entry in Robinson’s treaty diary concerning

a meeting with Governor General Lord Elgin in Sault Ste. Marie on August 30 and

31, prior to the Treaty Council, was evidence that the Governor General had

Page: 200

approved the trial judge’s “fair share” interpretation of the Treaties.⁴⁰²Robinson

recorded that he met with the Governor General and informed him of his “intentions

as to the treaty”, of which the Governor General approved. There is no reference

in Robinson’s treaty diary or in any other document he prepared as to exactly what

his “intentions” were. The trial judge stated, however, “[i]t is reasonable to conclude

that if Robinson was contemplating treaty terms outside the past practice of the

Government, and possibly committing a share of future proceeds from the territory,

that he discussed this idea and sought the approval from the Governor General

himself.”⁴⁰³

[468] The trial judge concluded:

Robinson would have discussed this novel idea for the

augmentation clause with Lord Elgin, and Lord Elgin

gave him the authorization he needed to proceed. This is

consistent with what is known about the way Robinson

acted. He secured Lord Elgin's approval to proceed on

that basis.

Finally, there is nothing in the historical record following

the Treaties to suggest that either the Governor General

or the Executive Council were unhappy with the

augmentation clause. Robinson must have been

confident that he had secured approval to make a treaty

on the basis of an augmentation provision with Lord

Elgin. Hence, he said in his report: “I trust his Excellency

will approve of my having concluded the treaty...”.⁴⁰⁴

⁴⁰²Stage One Reasons, at paras. 252-64.

⁴⁰³Stage One Reasons, at para. 252.

⁴⁰⁴Stage One Reasons, at paras. 263-64.

Page: 201

[469] In our respectful view, the inference the trial judge drew – that Robinson

obtained approval from the Governor General for the third “fair share” interpretation

– was simply not available to her. The words of the diary speak for themselves:

Robinson told Lord Elgin of his intentions and Lord Elgin approved them. The idea

that the Governor General approved the “novel idea” (the trial judge’s concept of

a fair share with an uncapped annuity) is a matter of pure speculation.⁴⁰⁵It is

equally likely that Robinson informed the Governor General of his intention to

provide a modest annuity with a “soft cap” of £1, with future increases occurring if

and when the funds were available and subject to Her Majesty’s graciousness.

[470] The fact that there was nothing in the historical record to suggest that Lord

Elgin and the Executive Council were unhappy with the augmentation clause is

equally consistent with the fourth interpretation of the Treaties.

[471] Although it is impossible to resolve exactly what conversations took place

between Robinson and Lord Elgin, it should be remembered that the government

of the day was “broke”, as the trial judge put it.⁴⁰⁶In these circumstances, it seems

highly unlikely that Robinson would have proposed, and Lord Elgin would have

approved, a treaty that committed the government to an unlimited, mandatory and

perpetual “sharing” of future revenues. It seems even more unlikely that, had

⁴⁰⁵See Stage One Reasons, at para. 263.

⁴⁰⁶Stage One Reasons, at para. 219.

Page: 202

Robinson received those instructions from the Queen’s representative, he would

not have mentioned them in his diary, in his report to the Executive Committee, or

in his subsequent communications.

[472] If Robinson had been intent on changing what the trial judge referred to as

the “known patterns of treaty making” and adopting a “novel” approach that would

give the Anishinaabe a “fair share” of the future revenues of the territory, it also

seems strange that he would have buried the language in the middle of terms

dealing with the augmentation of the annuity, to be revealed through a “missing

link”, which was only discovered some 170 years later.⁴⁰⁷

[473] More telling, had it been his intention to change the long-standing pattern of

treaty-making by giving the Anishinaabe a “fair share” of the value of the territories

he would certainly have made reference to that decision at the Treaty Council, in

his treaty diary, in his Report to the Executive Council or in his subsequent

correspondence on the issue, some of which responded to criticisms of the

Treaties. Indeed, it is telling that there is nothing in the post-Treaty record, on either

side, that demonstrates an understanding that the Robinson Treaties were

intended to be a departure from the traditional course of treaty-making, other than

to provide for an increase in the annuity if the land proved profitable.

⁴⁰⁷See Stage One Reasons, at paras. 405, 434, 469 and 535.

Page: 203

[474] In that regard, we return briefly to the post-Treaty record.

[475] The trial judge found the post-Treaty record of limited assistance in the

interpretative exercise.⁴⁰⁸What is striking about that record, however, and what

the trial judge failed to consider, is the absence of any evidence to support the

notion that the Treaties were intended to provide the Anishinaabe with a “fair

share” of the wealth of the Treaty territories, as the trial judge found.

[476] While there were complaints of various kinds after 1850 by and on behalf of

the Anishinaabe, no one ever suggested that the Crown’s obligation was unlimited

or that the Treaties compelled the payment of a “fair share”. While the Robinson

Treaties have been noted to be innovative in the use of an augmentation clause,

none of the historians cited in the record has suggested that the Treaties were

intended to give the First Nations a “fair share” of the revenues from the

territories.⁴⁰⁹

⁴⁰⁸Stage One Reasons, at para. 318.

⁴⁰⁹See Robert J. Surtees, “Indian Land Surrenders in Ontario 1763-1867” (Ottawa: Indian and Northern

Affairs Canada, 1983); Robert J. Surtees, Indian Land Cessions in Ontario, 1763-1862: The Evolution of

System (PhD Thesis, Carleton University, 1979) [unpublished]; Robert J. Surtees, “Indian Land Cessions

in Upper Canada, 1815-1830” in Ian A. L. Getty & Antoine S. Lussier, eds., As Long as the Sun Shines

and Water Flows: A Reader in Canadian Native Studies (Vancouver: University of British Columbia Press,

1983) 65; Robert J. Surtees, Treaty Research Report: The Robinson Treaties (1850) (Ottawa: Treaties

and Historical Research Centre, Indian and Northern Affairs Canada, 1986); Robert J. Surtees,

“Canadian Indian Treaties” in Wilcomb E. Washburn, ed., History of Indian-White Relations (Washington,

D.C.: Smithsonian Institution, 1988) 202; and Alexander Morris, The Treaties of Canada with the Indians

of Manitoba and the North-West Territories Including the Negotiations of which they are Based, and other

Information Relating Thereto (Toronto: Belfords Clarke, 1880).

Page: 204

[477] Indeed, as early as November 1850 Captain George Ironside, the

Superintendent of Indian Affairs at Manitowaning, wrote to his superior, Colonel R.

Bruce, the Superintendent General of Indian Affairs, noting that Chief

Shingwaukonse was said to be “very much dissatisfied indeed with the late Treaty”

and had been “led by designing persons” to believe that the Anishinaabe had been

“shamefully deceived”, particularly with regards to the amount of the annuity. The

letter said that Chief Shingwaukonse was taking a deputation to England, to make

their complaint to the authorities there.

[478] Colonel Bruce transmitted this communication to Robinson, who replied:

The clause I introduced to increase the amount under

certain reasonable circumstances should [and] I have no

doubt will satisfy the Indians generally — and convince

Her Majesty’s [Government] that they have no just cause

of complaint… It may well be for [Captain] Ironside to

explain to such of the Indians as he meets with at any

time that part of the Treaty, which secures to them a

larger annuity should the territory surrendered enable the

[Government] to [increase] it without loss.

[479] There is no suggestion in Robinson’s response that there were two

components of the annuity, one an individual payment and the other a payment to

the collective. Nor is there any suggestion that the Treaties offered an unlimited

“fair share” of the revenues from the Treaty territories, something that Robinson

would surely have said in defence of the Treaties he drafted.

[480] Particularly telling, as well, is Robinson’s response to a subsequent

complaint made by two Lake Huron Chiefs, who had sent a petition to the Governor

Page: 205

General, complaining that they had understood that the annuity to be received by

each band was to be in proportion to the quantity of land it had been allocated by

the Robinson-Huron Treaty.

[481] Colonel Bruce forwarded the communication to Robinson, noting in his

letter:

My impression gathered from your report [sic] the treaty

itself and the numerical lists transmitted as a guide for the

distribution of the annuities distinctly was that all the

Indians belonging to the Tribes interested were to share

in it alike, and as I understand the payments you made

on the spot, were governed by that principle.

The following extract from the Treaty seems to show

conclusively that the distribution was to be per capita and

not as suggested by the Petitioners [:] “And in that case

the same (the Annuity) shall be augmented from time to

time provided that the [amount] paid to each individual

shall not exceed the sum of one pound currency in any

one year.” [Emphasis added.]

[482] Robinson replied:

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 [and] are also clearly expressed in

the Treaty.… Nothing was said by the Chiefs [illegible] of

the nature mentioned in the extract you sent me and all

seemed satisfied both at the signing of the Treaty and

payment of the money with the terms on which I

concluded the surrender by them to Her Majesty.

[Emphasis added.]

[483] Once again, had Robinson believed that the Treaty included a “collective”

annuity that could be greater than the sum of the individual “per capita” annuities,

Page: 206

he would not have described it as being “based on the same conditions as all

preceding ones”. He would also, surely, have brought this feature to the attention

of Colonel Bruce.

[484] Having received Robinson’s response, Colonel Bruce, on behalf of the

Governor General, responded to Captain Ironside as follows:

With reference to the distribution of the Annuity he sees

no reason to suppose that a different rate was to be

pursued in this from other cases. Indeed the Treaty

clearly recognizes in all Indians entitled to participate in

the annuity the right to share equally. These views are

entertained by Mr. [Robinson?] to whom I have referred

for information on the subject and were has he states fully

explained in Council of the Chiefs before the Treaty was

signed. [Emphasis added.]

[485] In 1858, the Pennefather Commission was constituted by the government

to investigate “the best means of securing future progress and civilization of the

Indian Tribes in Canada” and “the best mode of … managing the Indian Property

as to secure its full benefit to the Indians, without impeding the settlement of the

country.” The Pennefather Commission’s observations concerning the Robinson

Treaties included the following:

[W]e do not hesitate to express our decided regret, that

Treaty shackled by such Stipulations, whereby a vast

extent of Country has been wrung from the Indians for

such a comparatively nominal sum, should have received

the sanction of the Government.

[486] These observations, made less than a decade after the Treaties were

signed, are inconsistent with the concept of an unlimited annuity or a fair sharing

Page: 207

of the revenues of the Treaty territories, something that would have been a novel

departure from traditional treaty-making.

[487] While the historical record contains complaints about the amount of the

annuity, there is nothing in the record to indicate that either the Crown or the

Anishinaabe believed that the annuity had both a collective component and an

individual component.

G.

CONCLUSION ON TREATY INTERPRETATION

[488] The trial judge made extricable errors of law in her interpretation of the

Treaties. The trial judge’s interpretation was neither supported by the language of

the Treaties themselves, nor by the pre-Treaty or post-Treaty evidence. There was

a reasonable “fourth interpretation” of the augmentation clause, which the trial

judge failed to consider. The fourth interpretation is the only one that is grounded

in the unambiguous words of the Treaties and is supported by the evidence on the

parties’ common intention at the time the Treaties were signed. Even the Huron

and Superior Plaintiffs’ counsel suggested that the fourth interpretation was

reasonable, as long as “Her Majesty’s graciousness” was not interpreted as a

reference to unfettered discretion.

[489] This raises the question – does the Crown have an obligation to augment

the annuity under the fourth interpretation?

Page: 208

[490] For over 170 years, the Robinson Treaties have been interpreted and

implemented as requiring a payment capped at $4. Counsel for the Superior

Plaintiffs advised us that, to this day, the members of the Robinson-Huron and

Robinson-Superior Treaty First Nations receive a $4 cheque or two “toonies”

distributed personally each year.

[491] Both Ontario and Canada agree that the annuities should be increased.

Ontario says that the annuities should be indexed for inflation. Canada says that it

should be accomplished through the augmentation clause. They cannot agree on

who bears the responsibility for the increases, an issue to be resolved, if

necessary, in Stage Three of these proceedings.

[492] Below, we will explain why we agree with the trial judge, and the majority,

that after 150 years of inaction, the Crown can be compelled to exercise its

discretion to address an injustice that brings dishonour to the Crown.

H.

THE HONOUR OF THE CROWN

(1) The Principles of the Honour of the Crown

[493] There is no dispute concerning the legal principles arising from the honour

of the Crown. Nor was there any dispute at trial or in this court that the honour of

the Crown binds the Crown in its dealings with the beneficiaries of the Robinson

Treaties. The real issues are the duties flowing from the honour of the Crown, the

Page: 209

impact of those duties on the Treaty promises, and the remedies available for

breach of those duties.

[494] The principles arising from the honour of the Crown have been expressed

and developed in a number of decisions of the Supreme Court, notably Mikisew

Cree (2018),⁴¹⁰Badger, Marshall, Manitoba Metis, and Haida Nation.⁴¹¹Those

cases establish the following general propositions:

 “[t]he honour of the Crown is a foundational principle of Aboriginal law

and governs the relationship between the Crown and Aboriginal

peoples. It arises from ‘the Crown’s assertion of sovereignty over an

Aboriginal people and de facto control of land and resources that were

formerly in the control of that people’ and goes back to the Royal

Proclamation of 1763”;⁴¹²

 the honour of the Crown “recognizes that the tension between the

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

rights and occupation of Aboriginal peoples creates a special

relationship that requires that the Crown act honourably in its dealings

with Aboriginal peoples”;⁴¹³

⁴¹⁰Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R.

765 (“Mikisew Cree (2018)”).

⁴¹¹Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R 511.

⁴¹²Mikisew Cree (2018), at para. 21; Haida Nation, at para. 32; and Manitoba Metis, at para. 66.

⁴¹³Mikisew Cree (2018), at para. 21; Manitoba Metis, at para. 67; and Brian Slattery, “Aboriginal Rights

and the Honour of the Crown” (2005) 29 S.C.L.R. (2d) 433, at p. 436.

Page: 210

 the “underlying purpose” of the honour of the Crown is to facilitate the

reconciliation of Aboriginal peoples’ pre-existing sovereignty and the

Crown’s assertion of sovereignty;⁴¹⁴

 one way that the honour of the Crown reconciles the tension between

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

rights of Aboriginal people is by “promoting negotiation and the just

settlement of Aboriginal claims as an alternative to litigation and

judicially imposed outcomes…. This endeavour of reconciliation is a

first principle of Aboriginal law”;⁴¹⁵

 “[t]he honour of the Crown is always at stake in its dealings with

Aboriginal peoples…. As it emerges from the Crown’s assertion of

sovereignty, it binds the Crown qua sovereign. Indeed, it has been

found to apply when the Crown acts either through legislation or

executive conduct”;⁴¹⁶

 the honour of the Crown “is not a mere incantation, but rather a core

precept that finds its application in concrete practices” and “gives rise

to different duties in different circumstances.”⁴¹⁷Because of the close

relationship between the honour of the Crown and s. 35 of the

⁴¹⁴Mikisew Cree (2018), at para. 22; Manitoba Metis, at paras. 66-67.

⁴¹⁵Mikisew Cree (2018), at para. 22; Taku River Tlingit First Nation v. British Columbia (Project

Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24.

⁴¹⁶Mikisew Cree (2018), at para. 23 (citations omitted).

⁴¹⁷Haida Nation, at paras. 16, 18.

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Constitution Act, 1982, the honour of the Crown has been described

as a “constitutional principle”, enshrined in s. 35(1);⁴¹⁸and

 the duties that flow from the honour of the Crown vary “with the

situation in which it is engaged.”⁴¹⁹The obligations that are imposed

by the honour of the Crown and what constitutes honourable dealing

“depends heavily” on the circumstances.⁴²⁰

[495] The honour of the Crown is not a cause of action itself.⁴²¹Instead, the honour

of the Crown gives rise to a variety of actionable duties. As explained in Manitoba

Metis, the honour of the Crown “speaks to how obligations that attract it must be

fulfilled.”⁴²²

[496] The Supreme Court has recognized duties that flow from the honour of the

Crown in a variety of circumstances. For example, in Marshall, the honour of the

Crown was used to give meaning and substance to promises made by the Crown,

in the absence of a complete written text. In Manitoba Metis, the court found that

a persistent pattern of errors and indifference had frustrated a solemn Crown

promise – the Crown was ultimately required to take a broad and purposive

approach to the interpretation of its legislative promise to the Metis and to act

⁴¹⁸Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42;

Taku River, at para. 24.

⁴¹⁹Manitoba Metis, at para. 74.

⁴²⁰Mikisew Cree (2018), at para. 24.

⁴²¹Manitoba Metis, at para. 73

⁴²²Manitoba Metis, at para. 73 (emphasis in original).

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diligently to fulfill it. In Haida Nation, the honour of the Crown drove a duty to

consult and reasonable accommodations of Aboriginal interests, pending a land

title claim.

[497] As demonstrated by the above authorities, duties that flow from the honour

of the Crown are contextual and impose a “heavy obligation” on the Crown.⁴²³

When the Crown is implementing a constitutional obligation to Aboriginal people,

the honour of the Crown requires it to: (1) take a broad and purposive approach to

the interpretation of the promise; and (2) act diligently to fulfill it.⁴²⁴

(2) The Crown’s Obligation to Honourably and Diligently Implement the

Robinson Treaties

[498] The Robinson Treaties affirmed the Crown’s desire to deal “liberally and

justly” with Her Majesty’s subjects and promised to augment the annuity to £1 per

person if the lands proved fruitful. It held out the promise of further augmentation,

should Her Majesty be graciously pleased to so order. As the Superior Plaintiffs

put it, the Crown made a promise to “act graciously”.

[499] At a minimum, the Treaty promises, together with the honour of the Crown

and principles of reconciliation, require the Crown to turn its mind from time to time

⁴²³Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, 485 Sask. R. 162, at

para. 41, leave to appeal refused, [2017] S.C.C.A. No. 95.

⁴²⁴Manitoba Metis, at para. 75.

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to consider an increase in the amount of the annuity in excess of £1. The Crown

has plainly failed to do so for 150 years since the one and only increase in 1875.

[500] This case goes well beyond the circumstances of Marshall, Haida Nation

and Manitoba Metis. Even though both Canada and Ontario acknowledge that the

annuity should be augmented in one manner or another, no steps have been taken

to do so. There is no evidence that after 1875 the Crown ever turned its mind to a

further increase in the annuity. The Crown’s refusal to exercise its discretion to

augment the annuities, even while recognizing that their purchasing power has

been gutted by persistent inflation, is a clear failure to diligently implement the

Robinson Treaties’ promise.

[501] As noted earlier, it has been suggested that historical treaties need to be

renegotiated, to reflect a modern understanding of the treaty relationship, with a

view to renewal and reconciliation. As Professor Coyle puts it:

The inescapable context of every historical land treaty in

what is now Canada is that both treaty partners needed

an arrangement under which the future of their peoples

could be secured in the face of inevitable changes to

come. And, in every case, what the parties sought was a

consensual arrangement for coexistence, one based on

reciprocal commitments and understandings. Accepting

these premises means a third principle must inevitably

form part of the normative order created by the historical

land treaties. That is, in entering into a relationship

expected to endure indefinitely, the historical treaty

partners would be prepared, in the face of significant

changes in circumstances over time, to negotiate, in

good faith, a new consensus as to how their treaty

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understandings should be renewed to address both

sides’ contemporary needs and interests in relation to the

treaty lands.⁴²⁵

[502] In entering into the Robinson Treaties the Crown expressly undertook to

revisit its promises and to refresh the annuities, where possible, “to address both

sides’ contemporary needs and interests in relation to the treaty lands.”

[503] The trial judge rejected Ontario’s submission that the honour of the Crown

gave the Crown unfettered discretion about whether to increase the annuities. She

found that in light of the Crown’s neglect of the Treaty promise for over a century

and a half, the court had the authority and the obligation “to impose specific and

general duties on the Crown.”⁴²⁶

[504] We respectfully agree with this conclusion.

I.

DISPOSITION

[505] For these reasons, we would grant judgment in the following terms:

 declaring that the Crown is under an obligation to turn its mind from

time to time to determine whether the £1 ($4) per person soft “cap“ on

the Treaty annuities can be augmented, having regard to the net

Crown resource-based revenues from the Treaty territories and

without incurring loss (the “augmentation promise”);

⁴²⁵Coyle, at p. 61 (emphasis and footnote omitted).

⁴²⁶Stage One Reasons, at para. 497.

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 declaring that the augmentation promise is a Treaty right, recognized

and affirmed by s. 35 of the Constitution Act, 1982;

 declaring that the Crown is required to diligently implement the

augmentation promise and is required to periodically engage in a

process, in consultation with the First Nation Treaty parties, to

determine the amount of such augmentation; and

 declaring that, in fulfilling these obligations, the Crown is subject to the

duties flowing from the honour of the Crown.

[506] We would direct the trial judge to invite further submissions from the parties,

before undertaking Stage Three, concerning the implementation of the

augmentation promise, including:

 the frequency with which the Crown is required to turn its mind to the

augmentation promise;

 the considerations to be taken into account in determining whether the

Crown can increase the annuities without incurring loss, including the

extent to which the Crown is entitled to take into account its other

obligations and expenditures, both within and outside the Treaty

territories;

 the calculation of the amounts, if any, by which the Crown should have

increased the annuities from time to time; and

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 the damages resulting from the Crown’s breach of the augmentation

promise.

[507] We would remit the matter of the Huron Plaintiffs’ costs for the Stage One

proceedings to the trial judge for reconsideration in accordance with the reasons

of Lauwers and Pardu JJ.A. We would dismiss the Stage Two appeal for the

reasons of Hourigan J.A. and award costs of the appeals in the manner set out in

the joint reasons.

“G.R. Strathy C.J.O.”

“David Brown J.A.”

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Hourigan J.A.:

A. INTRODUCTION

[508] I concur with the reasons of Lauwers and Pardu JJ.A. on the issues of costs,

indexing, the honour of the Crown, Crown discretion and remedies. While I also

agree with their conclusion on the trial judge’s interpretation of the Robinson

Treaties, like Pardu J.A., I do so on the basis that her interpretation was free from

palpable and overriding error and contained no extricable legal errors.

[509] In addition, I issue these reasons to address: (1) whether the appropriate

standard of review when considering an appeal about the interpretation of a

historical Aboriginal treaty is palpable and overriding error or correctness; (2)

whether the trial judge erred in finding that Canada and Ontario owe the Huron

and Superior Plaintiffs a fiduciary duty regarding the implementation of the

augmentation clauses in the Robinson Treaties; (3) whether Ontario can assert a

defence of Crown immunity with respect to the Huron and Superior Plaintiffs’

breach of fiduciary duty claims; and (4) whether the claims for breach of Treaty are

prescribed by the former Limitations Act (the “1990 Limitations Act”).⁴²⁷

[510] Regarding the appropriate standard of review in treaty interpretation cases,

the appellate jurisprudence in Canada has created two distinct lines of authority.

⁴²⁷Limitations Act, R.S.O. 1990, c. L.15 (the “1990 Limitations Act”).

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On one side, there is case law that regards treaty interpretation as akin to

contractual analysis, and that uses a standard of palpable and overriding error to

review lower courts’ decisions. This approach finds support in the seminal decision

of Sattva.⁴²⁸There, the Supreme Court found that matters of contractual

interpretation generally raise questions of mixed fact and law because the

principles of contractual interpretation must be “applied to the words of the written

contract, considered in light of the factual matrix.”⁴²⁹Since contract and treaty

interpretation involve analogous (though not identical) considerations, subsequent

cases have reasoned that appellate courts should adopt a less stringent standard

of review, i.e., a standard of palpable and overriding error, when interpreting

historical Aboriginal treaties.

[511] On the other hand, there is a line of appellate authority (primarily pre-Sattva)

holding that treaties are of a different qualitative nature than contracts. These

cases suggest that because of the importance of treaty cases and their

constitutional implications, appellate courts should review lower court decisions on

a standard of correctness.

[512] There is merit in both positions. Aboriginal treaties are important. They

represent a “solemn exchange of promises” between the Crown and Indigenous

⁴²⁸Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633.

⁴²⁹Sattva, at para. 50.

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peoples. In many parts of Canada, they “formed the basis for peace and the

expansion of European settlement.”⁴³⁰They also continue to provide a framework

for an ongoing relationship between the Crown, Indigenous peoples, and Canadian

society at large. To that end, unlike the decisions routinely made by courts in

contract cases, treaty interpretation requires judges to think about how the treaties

at issue will define legal obligations for generations to come. However, the courts

also must be mindful of the circumstances that surrounded the formation of

Aboriginal treaties. Historical Aboriginal treaties were drafted and signed in

drastically different circumstances than the modern Aboriginal treaties we see

today. As a result, to adequately understand the relevant context and properly

interpret the parties’ intentions, the factual matrix becomes exceedingly important

in historical Aboriginal treaty cases.

[513] To determine the appropriate standard of review, it is thus important to

analyze the central role that historical context plays in determining both the factual

and legal issues underlying treaty interpretation. Further, it is essential to carefully

consider the interpretative process undertaken by trial judges in historical

Aboriginal treaty cases. When the role of historical context and the nature of the

interpretive process are considered, it becomes evident that only a standard of

⁴³⁰R. v. Sundown, [1999] 1 S.C.R. 393, at para. 24.

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review of palpable and overriding error provides the appropriate level of deference

to trial courts.

[514] Regarding fiduciary duty, the trial judge found that the Crown owes an ad

hoc fiduciary duty, but not a sui generis fiduciary duty, to the Treaty beneficiaries

in the implementation of the augmentation clauses.

[515] In my view, the trial judge erred in law in finding the existence of an ad hoc

fiduciary duty in the circumstances. Two parts of her analysis render her decision

unsustainable. First, the trial judge significantly expanded the scope of the ad hoc

fiduciary duty between the release of her reasons and the settling of the judgments

in these cases. It was transformed from a narrow and procedural duty into a broad-

based and substantive obligation on the Crown to implement the augmentation

clauses. Second, the trial judge made a legal error by concluding that the Crown

agreed to act solely in the best interests of the Treaty beneficiaries when upholding

the Treaty augmentation clauses. This was not legally possible because it would

put the Crown, which is also responsible for Canadian society as a whole, in an

inevitable conflict of interest.

[516] I would not interfere with the trial judge’s finding regarding the sui generis

fiduciary duty as I see no error in her analysis, and the ruling was consistent with

binding precedent. Further, courts must be cautious in expanding the scope of the

Page: 221

sui generis fiduciary duty where the actions of the Crown are more in the nature of

a public law duty rather than a private law duty.

[517] Ontario also asserts Crown immunity with respect to the claims for breach

of fiduciary duty. It does not rely on Crown immunity in defence of any other aspect

of the Huron and Superior Plaintiffs’ claims. Given my conclusion that there is no

fiduciary duty owed in the circumstances of this case, it is unnecessary to decide

whether Crown immunity is available, and I decline to do so.

[518] Regarding the 1990 Limitations Act, the Crown appeals the decision of the

trial judge, which found that the provisions of the legislation are unavailable with

respect to the breach of Treaty claims. Ontario argues that the pre-2002 Treaty

claims are statute-barred because one of the following limitation periods apply: (1)

the claims are actions for contract without specialty, subject to a six-year limitation

period under s. 45(1)(g); (2) the claims are actions upon a specialty, subject to a

twenty-year limitation period under s. 45(1)(b); or (3) the claims are actions of

account, subject to a six-year limitation period under s. 46.

[519] The Crown’s submissions regarding the 1990 Limitations Act are without

merit. Limitation periods are supposed to provide certainty to litigants regarding

their legal rights and liabilities. There is nothing in the 1990 Limitations Act that

explicitly references treaty claims. Had the legislature intended to target treaty

claims, it would have been a straightforward task to do so, either through an explicit

Page: 222

reference or the inclusion of a basket clause that caught all other causes of action

not explicitly mentioned in the statute.

[520] In any event, I do not accept the thrust of the Crown’s submission that

treaties are synonymous with contracts. While treaties and contracts may share

certain common features, the weight of the authority from the Supreme Court is

that they are very different legal instruments. Similarly, a specialty contract shares

little or no commonality with a treaty. Finally, as contemplated in the 1990

Limitations Act, an action of account is wholly inapplicable to the Robinson

Treaties.

B.

ANALYSIS

(1) Standard of Review

Historical Aboriginal Treaties

[521] Treaties between Aboriginal people and the Crown are generally divided into

“historical treaties”, negotiated prior to 1921, and “modern treaties”, negotiated

after 1973.⁴³¹The written terms of historical Aboriginal treaties, which surrendered

large tracts of land to the Crown, are understood to be significantly less favourable

to Indigenous parties than those contained in modern treaties.⁴³²The Robinson

⁴³¹Julie Jai, “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate

Historic Treaties” in John Borrows & Michael Coyle, eds., The Right Relationship: Reimagining the

Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 105 (“Jai (2017)”), at p.

105.

⁴³²Jai (2017), at p. 107.

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Treaties, signed in 1850, are historical in nature. At the outset of my analysis, it is

therefore essential to outline the differences between modern Aboriginal treaties

and historical Aboriginal treaties in order to ascertain the standard of review

applicable to these cases.

[522] Historical Aboriginal treaties were negotiated “at the demographic low point

for Indigenous peoples, which coincided with the relative lack of Indigenous

economic, military, and legal power.”⁴³³In order to ensure that land and resources

were not taken without their permission, and to protect their communities from

European-borne diseases and starvation, Aboriginal people entered treaty-making

processes with reduced bargaining power.⁴³⁴

[523] Historical Aboriginal treaties were often negotiated quickly,⁴³⁵with little or no

legal representation for the Indigenous signatories.⁴³⁶They were intended to

record the agreement reached orally between the parties, but were relatively brief

documents “with lofty terms of high generality” that did not always include the full

extent of the Crown’s promises to Indigenous signatories.⁴³⁷Further, the

differences in language, culture, and worldview led to divergent understandings of

⁴³³Jai (2017), at p. 107.

⁴³⁴Jai (2017), at pp. 112, 122-23.

⁴³⁵Gordon Christie, “Justifying Principles of Treaty Interpretation” (2000) 26:1 Queen’s L.J. 143, at p. 188.

⁴³⁶Julie Jai, “The Interpretation of Modern Treaties and the Honour of the Crown: Why Modern Treaties

Deserve Judicial Deference” (2009) 26:1 Nat’l J. Const. L. 25 (“Jai (2009)”), at p. 27.

⁴³⁷Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 12. See

also R. v. Badger, [1996] 1 S.C.R. 771, at para. 52.

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what the parties agreed to in each treaty.⁴³⁸The written text of historical Aboriginal

treaties may thus not reflect the true intent or understanding of Indigenous

signatories.⁴³⁹As a result, cases like the ones before this court raise questions

about whether the written text represents the entirety of the Crown’s obligations.

[524] By contrast, modern Aboriginal treaties were negotiated in a period of

improved Indigenous bargaining power.⁴⁴⁰Modern Aboriginal treaties are long and

complex documents that have been carefully drafted and reviewed by all parties’

legal counsel over several years. They are usually ratified by a majority of

community members after substantial consultation and engagement. Unlike the

historical Aboriginal treaties, they also contain amending provisions that recognize

the need for continued dialogue between the parties. The consequences of such

an inclusive and iterative process are that once a modern Aboriginal treaty is

concluded, the parties are more likely to have a similar understanding of what has

been agreed to, and the written text of the document more accurately captures the

key terms of their agreement.⁴⁴¹

⁴³⁸Jai (2009), at p. 27. See also Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R.

557, at para. 108.

⁴³⁹Jai (2017), at p. 107. For a discussion of historical treaties and whether they reflect the “real deal”, a

fair deal, or no deal at all, see Nancy Kleer & Judith Rae, “Divided We Fall: Tsilquot’in and the Historic

Treaties” (11 July 2014), online (blog): Olthuis Kleer Townshend LLP: <https://www.oktlaw.com/divided-

fall-tsilhqotin-historic-treaties/>.

⁴⁴⁰Jai (2017), at p. 130.

⁴⁴¹Jai (2017), at pp. 134-36.

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[525] The interpretation of modern Aboriginal treaties can still give rise to

disagreement. However, the context in which they are negotiated, and the

comprehensiveness of the document produced, mean that the circumstances a

court must consider to identify the parties’ common intention and to determine an

appropriate interpretation is vastly different than historical Aboriginal treaties. In

Beckman, Binnie J. explained that:

[T]he distinction lies in the relative precision and

sophistication of the modern document. Where

adequately resourced and professionally represented

parties have sought to order their own affairs, and have

given shape to the duty to consult by incorporating

consultation procedures into a treaty, their efforts should

be encouraged and, subject to such constitutional

limitations as the honour of the Crown, the Court should

strive to respect their handiwork.⁴⁴²

[526] Consequently, modern Aboriginal treaties warrant greater deference to their

text than historical Aboriginal treaties.⁴⁴³

[527] Historical Aboriginal treaties should “be interpreted in light of the contexts in

which they were signed, and that interpretation must be both liberal and dynamic

so as to avoid the freezing of rights, while any ambiguity is to be resolved in favour

of the Aboriginal signatories.”⁴⁴⁴This requires courts to go beyond the facial

meaning of the text and to examine any evidence of how the parties understood

⁴⁴²Beckman, at para. 54 (citation omitted).

⁴⁴³First Nation of Nacho Nyuk Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576, at para. 36.

⁴⁴⁴Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 108.

Page: 226

the terms at the time the treaty was signed. Courts must undertake an extensive

analysis of the record and witness testimony in order to make factual findings that

will provide a foundation for them to apply the principles of treaty interpretation and

arrive at a conclusion best reconciling the interests and intentions of both parties.

[528] As I will elaborate below, it is precisely the scope of the fact-finding exercise

underpinning the interpretation of historical Aboriginal treaties that requires

appellate courts, upon review, to afford deference to lower courts and apply a

standard of palpable and overriding error.

The Case for a Correctness Standard

[529] Ontario relies on Van der Peet,⁴⁴⁵Marshall,⁴⁴⁶and Caron⁴⁴⁷to assert that

the standard of review applicable to the interpretation of historical Aboriginal

treaties is correctness. According to Ontario, the interpretation of treaties is a legal

issue, even when informed by findings of fact.

[530] In Van der Peet, the appellant was charged with the offence of selling fish

that she had caught under the authority of an Indian food fish license. The appellant

defended the charges on the basis that she had exercised an existing Aboriginal

⁴⁴⁵R. v. Van der Peet, [1996] 2 S.C.R. 507.

⁴⁴⁶R. v. Marshall, [1999] 3 S.C.R. 456.

⁴⁴⁷Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511.

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right to sell fish, and as a result, the relevant section of British Columbia’s fishery

regulations⁴⁴⁸violated s. 35(1) of the Constitution Act, 1982.

[531] Lamer C.J. stated that no deference is owed to legal inferences or

conclusions drawn from the trial judge’s findings of fact. The relevant paragraph

reads as follows:

In the case at bar, Scarlett Prov. Ct. J., the trial judge,

made findings of fact based on the testimony and

evidence before him, and then proceeded to make a

determination as to whether those findings of fact

supported the appellant’s claim to the existence of an

aboriginal right. The second stage of Scarlett Prov. Ct.

J.’s analysis — his determination of the scope of the

appellant's aboriginal rights on the basis of the facts as

he found them — is a determination of a question of law

which, as such, mandates no deference from this Court.

The first stage of Scarlett Prov. Ct. J.’s analysis, however

— the findings of fact from which that legal inference was

drawn — do mandate such deference and should not be

overturned unless made on the basis of a “palpable and

overriding error”. This is particularly the case given that

those findings of fact were made on the basis of Scarlett

Prov. Ct. J.’s assessment of the credibility and testimony

of the various witnesses appearing before him.⁴⁴⁹

[532] The Supreme Court ultimately showed deference to the trial judge's findings

of fact but applied a standard of correctness to his subsequent analysis of the

⁴⁴⁸See British Columbia Fishery (General) Regulations, SOR/84-248, s. 27(5).

⁴⁴⁹Van der Peet, at para. 82 (emphasis added).

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scope of the appellant’s Aboriginal rights. A correctness standard was similarly

imposed in several other historical Aboriginal treaty cases before Sattva.⁴⁵⁰

[533] Ontario rejects the argument that this jurisprudence’s precedential value has

been called into question due to the Supreme Court’s decision in Sattva. It submits

that treaties are not comparable to everyday commercial contracts, and that treaty

relationships between the Crown and Aboriginal peoples create public law and are

of importance to individuals and communities beyond a particular case. That

argument seems to find support in a recent article by Professor Janna Promislow:

Serving the ends of justice in the treaty interpretation

context, however, is more complex than the interpretation

of contracts, due to the historical nature of the

agreements and the constitutional character of the

moments of agreement – and because the foundational

values behind protecting historic treaty rights are

arguably less understood and more contentious than the

values behind protecting freedom of contract.⁴⁵¹

[534] In any event, Ontario submits that the Supreme Court has not created a

single standard of review applicable to all contracts. For example, in Ledcor, the

court held that when faced with standard form contracts affecting a wide range of

⁴⁵⁰See e.g., Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 64

B.C.L.R. (3d) 206, at para. 85; Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 213 Sask. R. 1, at

para. 148, leave to appeal refused, [2001] S.C.C.A. No. 647.

⁴⁵¹Janna Promislow, “Treaties in History and Law” (2014) 47:3 U.B.C.L. Rev. 1085, at p. 1172 (footnote

omitted).

Page: 229

parties, Sattva does not apply, and the case should be reviewed on a standard of

correctness.⁴⁵²

[535] Ontario also argues that in Caron, which was released post-Sattva, the

Supreme Court affirmed its earlier jurisprudence on the applicability of the

correctness standard of review in treaty interpretation cases. The Supreme Court

noted:

While we take no issue with the factual findings of the

provincial court judge regarding the negotiations

between the delegates and Canada, we disagree with his

legal conclusion that the negotiations resulted in a pact

with Canada to establish legislative bilingualism in all of

the annexed territories (para. 354). In this respect, there

is a helpful distinction drawn in Aboriginal rights

jurisprudence between a trial judge’s findings of fact on

historical matters, which are entitled to deference, and

the legal inferences or conclusions that a trial judge

draws from such facts, which are not. As Lamer C.J.

explained in R. v. Van der Peet, [1996] 2 S.C.R. 507, “[the

trial judge’s] determination of the scope of the appellant’s

aboriginal rights on the basis of the facts as he found

them … is a determination of a question of law which, as

such, mandates no deference from this Court” (para. 82;

see also R. v. Marshall, [1999] 3 S.C.R. 456, at para. 18;

and R. v. Sappier, 2004 NBCA 56, 273 N.B.R. (2d) 93, at

para. 76). In our view, the same distinction applies with

respect to the historical factual findings of the provincial

court judge in this case, and the legal inferences he

draws on the basis of these facts.⁴⁵³

⁴⁵²Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23

⁴⁵³Caron, at para. 61 (emphasis added).

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[536] In another recent post-Sattva case, Fort McKay First Nation, the Court of

Appeal of Alberta took an unequivocal stance on the standard of review applicable

to treaty interpretation. The court subscribed to the view that all matters of treaty

interpretation are subject to a standard of correctness.⁴⁵⁴

[537] In summary, Ontario submits that treaty interpretation cases, both before

and after Sattva, call for a correctness standard of review. It relies on the

importance of treaties and the broad impact of decisions interpreting treaties as

justifying this more stringent standard of review.

The Case for a Deferential Standard

[538] The Huron Plaintiffs argue that historical Aboriginal treaty interpretation is a

matter of mixed fact and law, and reviewable on the standard of palpable and

overriding error. In support of this submission, they draw an analogy to contracts.

In the pre-Sattva jurisprudence, there is authority for the proposition that Aboriginal

treaties should be treated as analogous to contracts. For example, in Badger, Cory

J. noted that “[t]reaties are analogous to contracts, albeit of a very solemn and

special, public nature.”⁴⁵⁵

[539] Sattva represented a sea change in the approach to the standard of review

in contractual interpretation cases. In that case, Rothstein J. recognized that the

⁴⁵⁴Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, at para. 39.

⁴⁵⁵Badger, at para. 76.

Page: 231

traditional view in England and Canada had been that the standard of review on

an appeal from a lower court decision involving the interpretation of a contract was

correctness. However, he noted that the law of contractual interpretation in

Canadian courts had developed to the point where it was recognized that the

meaning of contractual terms is often derived from contextual factors – also known

as the “factual matrix” – that must inform the analysis.

[540] Further, Rothstein J. observed that the exercise of applying the principles of

contractual interpretation to the facts and words of an agreement is closer to a

question of mixed fact and law than a question of law. He emphasized that

determining the parties’ objective intentions to a contract is a “fact-specific goal”,

informed, in part, by a consideration of “the surrounding circumstances known to

the parties at the time of formation of the contract.”⁴⁵⁶

[541] Another critical policy rationale for the imposition of a more deferential

standard of review relied on by Rothstein J. was that in most cases, the

interpretation of a contract would have no impact beyond the interests of the

parties to the particular dispute. On this point, he reasoned as follows:

[O]ne central purpose of drawing a distinction between

questions of law and those of mixed fact and law is to

limit the intervention of appellate courts to cases where

the results can be expected to have an impact beyond

the parties to the particular dispute. It reflects the role of

courts of appeal in ensuring the consistency of the law,

⁴⁵⁶Sattva, at paras. 47, 49.

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rather than in providing a new forum for parties to

continue their private litigation. For this reason, Southam

identified the degree of generality (or “precedential

value”) as the key difference between a question of law

and a question of mixed fact and law. The more narrow

the rule, the less useful will be the intervention of the

court of appeal….

Similarly, this Court in Housen found that deference to

fact-finders promoted the goals of limiting the number,

length, and cost of appeals, and of promoting the

autonomy and integrity of trial proceedings…. These

principles also weigh in favour of deference to first

instance decision-makers on points of contractual

interpretation. The legal obligations arising from a

contract are, in most cases, limited to the interest of the

particular parties. Given that our legal system leaves

broad scope to tribunals of first instance to resolve issues

of limited application, this supports treating contractual

interpretation as a question of mixed fact and law.⁴⁵⁷

[542] It is important to note that Rothstein J. recognized that it might be possible

to identify an extricable question of law from within what was initially characterized

as a question of mixed fact and law. He cited examples, including the application

of an incorrect principle, the failure to consider a required element of a legal test,

or the failure to consider a relevant factor.⁴⁵⁸However, he warned that courts

should be cautious in identifying legal errors in disputes over contractual

interpretation. He stated that “the circumstances in which a question of law can be

extricated from the interpretation process will be rare.”⁴⁵⁹

⁴⁵⁷Sattva, at paras. 51-52 (citation omitted).

⁴⁵⁸Sattva, at para. 53.

⁴⁵⁹Sattva, at para. 55.

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[543] The Huron Plaintiffs submit that while historical Aboriginal treaties are not

contracts, their interpretation requires the courts to look at the historical context

and the parties’ intentions in a manner at least as inherently fact specific as

contractual interpretation.

[544] Like the Huron Plaintiffs, the Superior Plaintiffs submit that the rationale for

the deferential standard of review in Sattva applies with equal force to the

interpretation of historical Aboriginal treaties. The Superior Plaintiffs, however, go

a step further than the Huron Plaintiffs and assert that the interpretation of the

Robinson Treaties will have no precedential value because they are the only ones

in Canada to contain augmentation clauses. Given what they believe to be the

limited precedential value of this case, the Superior Plaintiffs argue that the trial

judge’s interpretation should attract significant deference on appeal unless there

is an extricable error of law.

[545] The Superior Plaintiffs draw an analogy between the interpretation of the

Robinson Treaties and the interpretation of the Indian Residential School

Settlement Agreement in Fontaine (SCC).⁴⁶⁰In Fontaine (SCC), the court’s

decision would have had a broad impact affecting thousands of people but was not

subjected to a higher standard of review. The Superior Plaintiffs similarly argue

⁴⁶⁰Fontaine v. Canada (Attorney General), 2017 SCC 47, [2017] 2 S.C.R. 205 (“Fontaine (SCC)”), aff’g

2016 ONCA 241, 130 O.R. (3d) 1 (“Fontaine (ONCA)”).

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that although the interpretation of the Robinson Treaties will have significant

implications for many people, the fundamental issue for the courts to address is

the common intention of the Treaties’ signatories, and thus, the question is one of

mixed fact and law.

[546] Both the Huron and Superior Plaintiffs cite West Moberly, a recent case from

the Court of Appeal for British Columbia that examined the standard of review in

historical Aboriginal treaty cases.⁴⁶¹This appeal concerned the interpretation of a

“metes and bounds” clause in Treaty 8 that described a tract of land.

[547] The plaintiffs in West Moberly applied for a declaration that the tract’s

western boundary referred to the height of land along the continental divide

between the Arctic and Pacific watersheds. The province counterclaimed. It sought

a declaration that the disputed phrase referred to the line of the watershed within

the Rocky Mountains as those mountains were understood to be situated in 1899

at the time of the treaty signing. The trial judge granted the declaration requested

by the plaintiffs. The province appealed the order on the grounds that: (1)

declaratory relief was unavailable in the circumstances; and (2) the trial judge erred

in his interpretation of the relevant provision.

⁴⁶¹West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232, leave to

appeal refused, [2020] S.C.C.A. No. 252.

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[548] In dismissing the appeal, the majority, whose decision was authored by

Bauman C.J.B.C., briefly considered the issue of the standard of review. The

majority noted:

It is common ground that no deference is owed to judicial

conclusions stemming from legal error. A correctness

standard of review applies to a finding of the trial judge

that “can be traced to an error in his or her

characterization of the legal standard”: Housen, at para.

33. Similarly, no deference is owed to the legal

conclusions a trial judge makes by applying the law to a

historical record: Caron v. Alberta, 2015 SCC 56 at para.

61.⁴⁶²

[549] In dissenting reasons, Smith J.A. undertook a more detailed analysis of the

issue and concluded:

In my view, the principles outlined in Sattva provide

guidance in the approach to be taken to the standard of

review with respect to treaty interpretation. Contract and

treaty interpretation involve analogous (though not

identical) considerations. Like contract interpretation,

treaty interpretation involves the application of legal

principles of interpretation to the text of the written treaty,

considered in light of the factual matrix. For historical

treaties, that matrix includes the historical and cultural

context of the time. Thus, the standard of review that

applies to treaty interpretation is overriding and palpable

error unless the error alleged involves an extricable

question of law.⁴⁶³

⁴⁶²West Moberly, at para. 363.

⁴⁶³West Moberly, at para. 130.

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[550] The Huron and Superior Plaintiffs rely on Smith J.A.’s comments in support

of their position that the standard of review is palpable and overriding error.

[551] In summary, the Huron and Superior Plaintiffs submit that the factual matrix

plays an essential role in the interpretative exercise of non-standard form contracts

and historical Aboriginal treaties. Therefore, for the same reasons articulated by

the Supreme Court in Sattva, they argue that the trial judge’s decision should be

subject to a more deferential standard of review.

A New Approach

[552] As I stated at the outset of these reasons, I am of the view that a new

approach should be taken on the issue of standard of review as it relates to the

interpretation of historical Aboriginal treaties. I will first consider Ontario’s

submissions in favour of a correctness standard of review before I explain what

the new approach should be.

(i)

Ontario’s Arguments Are not Persuasive

[553] Ontario’s plea that a higher standard of review should be imposed because

of the Treaties’ significance is not persuasive. That is not the way standard of

review analysis is supposed to operate. Courts do not have differing standards

dependent on the quantum of damages at stake or the number of people impacted

by the decision. A breach of contract judgment in a dispute between two parties is

not entitled to less deference than a similar decision in a class proceeding that

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impacts thousands of class members. As Strathy C.J.O. stated in Fontaine

(ONCA):

The question is not whether the decision will impact many

people, but whether it will have precedential value, in the

sense that it provides guidance to adjudicators or

resolves an issue that could arise in future litigation. The

fact that the outcome of the interpretation of the

agreement will affect many – indeed many thousands –

of claimants, is not, of itself, a reason to elevate the

standard of review to correctness.⁴⁶⁴

[554] Deference is also applied to the fact-finding of judges in a myriad of

circumstances that result in very serious consequences. For example, in criminal

cases, factual findings critical in determining the guilt or innocence of an accused,

or the appropriate sentence, are afforded significant deference on appeal. It is

therefore an unconvincing argument to state that the standard of review should be

higher for treaty interpretation cases because the consequences flowing from the

decisions are more significant.

[555] The jurisprudence is clear, however, that whether a decision has

precedential value will be a significant factor in determining the appropriate

standard of review. The purpose of the distinction between questions of mixed fact

and law and questions of law is, as a matter of judicial economy, to limit an

appellate court’s power to interfere with the fact-finder’s interpretation of a contract,

⁴⁶⁴Fontaine (ONCA), at para. 95.

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given that in most cases, the interpretation will have no impact beyond the interests

of the parties to the particular dispute.⁴⁶⁵

[556] Wagner J. (as he then was) described the distinction between cases with

and without precedential value this way in Ledcor:

Contractual interpretation is often the “pure application”

of contractual interpretation principles to a unique set of

circumstances. In such cases, the interpretation is not “of

much interest to judges and lawyers in the future”

because of its “utter particularity”. These questions of

contractual interpretation are appropriately classified as

questions of mixed fact and law, as the Court explained

in Sattva.

However, the interpretation of a standard form contract

could very well be of “interest to judges and lawyers in

the future”. In other words, the interpretation itself has

precedential value. The interpretation of a standard form

contract can therefore fit under the definition of a “pure

question of law”, i.e., “questions about what the correct

legal test is”: Sattva, at para. 49; Southam, at para. 35.

Establishing the proper interpretation of a standard form

contract amounts to establishing the “correct legal test”,

as the interpretation may be applied in future cases

involving identical or similarly worded provisions.⁴⁶⁶

[557] It is essential to recognize that what the Supreme Court discussed in Ledcor

was standard form insurance contracts, which contained identical or nearly

identical contractual language as used in many other insurance policies. In the

cases at bar, the interpretation of the agreements has minimal precedential value.

⁴⁶⁵MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at

para. 21, leave to appeal refused, [2016] S.C.C.A. No. 39.

⁴⁶⁶Ledcor, at paras. 42-43.

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As counsel for the Superior Plaintiffs point out, there are no other similar

augmentation treaties extant in Canada.

[558] I am also not persuaded that there should be a distinction, as suggested in

Van der Peet, Marshall, and Caron, between findings of historical facts (reviewed

on a deferential standard) and the application of those findings to draw appropriate

legal inferences (reviewed on a correctness standard). In a case where the primary

goal of the analysis is to ascertain the signatories’ intentions for executing a treaty,

the determination of the historical facts and the legal consequences of those

findings are usually two sides of the same coin. Once the trial judge has

determined the parties’ intention, there is very little work remaining; the legal

consequences flow directly from the fact-finding. It is artificial to suggest that there

is a two-step process and that different review standards should apply to each

step.

[559] Further, in my view, Van der Peet, Marshall, and Caron do not stand for the

proposition that historical Aboriginal treaties are to be reviewed on a correctness

standard. It must be noted that both Van der Peet and Marshall were decided prior

to Housen, the leading case on the standards of appellate review.⁴⁶⁷In that case,

the court differentiated between errors of law that are subject to a correctness

standard, and errors of fact or mixed fact and law that are subject to a palpable

⁴⁶⁷Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

Page: 240

and overriding error standard. Van der Peet and Marshall are examples of cases

decided on extricable legal errors – the former case involved the establishment

and application of the test for Aboriginal rights, whereas in the latter case, the

Supreme Court was required to give effect to a treaty interpretation principle that

the trial judge had ignored. Finally, Caron was not a case about Aboriginal or treaty

rights.

[560] For these reasons, I would reject Ontario’s arguments for a standard of

correctness.

(ii) Appellate Review of Historical Aboriginal Treaty Interpretation

[561] The question that remains is whether historical Aboriginal treaties should be

subject to a lower standard of review by reason of their similarity to contracts and

should be fit under the umbrella of the Sattva line of authority.

[562] I recognize that there is jurisprudence where appellate courts have

suggested that Aboriginal treaties are akin to contracts. However, as Michael

Coyle points out:

[T]he doctrines of contract law did not evolve in the

context of arrangements intended to endure for

generations and were not formulated to resolve the kinds

of disputes that are likely to arise in such a long-term

relationship. Conceiving of treaties mainly through the

principles of domestic contract law would fail to account

for either the web of relational expectations that infused

the treaty-making process or the necessarily

unforeseeable and evolving circumstances through

which the parties intended to maintain their treaty

Page: 241

relationship. Perhaps most importantly, to adopt an

approach based solely on Canada’s domestic law of

contracts would overlook the fundamental character of

treaties, namely that they are the product of an encounter

between two separate legal orders, Indigenous and non-

Indigenous. Since at least 1985, with the Supreme Court

of Canada’s Simon decision, Canadian law has

acknowledged that treaties between the Crown and First

Nations are unique legal arrangements to be governed

by a set of legal principles adapted to their unique

nature.⁴⁶⁸

[563] I would thus approach the issue in a slightly different manner. In my view,

the reasons why the analysis of historical Aboriginal treaties should be subject to

a lower standard of review are twofold: (1) the critical nature of historical context

in the exercise; and (2) the process that trial courts engage in when undertaking a

historical Aboriginal treaty analysis.

(i)

The Historical Context

[564] The historical context relevant to treaty interpretation includes not only the

political, economic, and social circumstances that the Crown and the Indigenous

parties had faced in or around the time of the document’s signing. The historical

context also refers to how Indigenous communities would have conceptualized

their relationships to one another, the land, and European society, and how the

Crown would have viewed the same. The parties’ beliefs, legal orders, and desires

⁴⁶⁸Michael Coyle, “As Long as the Sun Shines: Recognizing That Treaties Were Intended to Last” in John

Borrows & Michael Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical

Treaties (Toronto: University of Toronto Press, 2017) 39, at pp. 46-47 (footnotes omitted).

Page: 242

for the future would have provided the framework with which they each approached

and entered into a given treaty. It must consequently be stressed that this historical

context is integral to the exercise of Aboriginal treaty interpretation, which is

fundamentally about the determination of the parties’ rights as was intended by the

original signatories at the time of the document’s signing.

[565] As Julie Jai notes, historical Aboriginal treaties were meant to create a

relationship between two culturally distinct groups so that they could peacefully co-

exist. However, there were gaps in language, worldview, and other factors that

produced divergent understandings of what was agreed upon between the parties.

In addition, the Aboriginal signatories often did not have legal representation and

did not appreciate the fact that they were giving up their rights for perpetuity.⁴⁶⁹

The exercise of seeking common intent in treaty interpretation would be

“superfluous and misleading if the courts did not concern themselves with the

manner in which each party’s apparent assent was obtained.”⁴⁷⁰In other words,

when courts examine historical Aboriginal treaties that were negotiated quickly,

with power imbalances, and often in a language foreign to Aboriginal peoples, the

task of treaty interpretation cannot be accomplished without a detailed

understanding of the broader historical context.

⁴⁶⁹Jai (2009), at p. 27.

⁴⁷⁰Michael Coyle, “Marginalized by Sui Generis? Duress, Undue Influence and Crown-Aboriginal

Treaties” (2008) 32:2 Man. L.J. 34, at p. 59.

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[566] I would also observe that our courts interpret these historical treaties in the

21st century, where we recognize reconciliation as an animating element of

ongoing Aboriginal-Crown relationships. To that end, the Crown must perform its

treaty obligations in a manner that “pursues the purpose behind the promise.”⁴⁷¹It

must also ensure that its dealings do not render the treaty an improvident

arrangement for the Aboriginal signatories. This substantive legal accountability is

not possible if the courts are restricted to an interpretation based on the “lean and

often vague vocabulary of historic treaty promises.”⁴⁷²Reconciliation requires the

courts to view each historical treaty in the context of the facts that come from the

vast and unique array of evidentiary sources presented by the parties.

(ii) The Process of Trial Courts in Interpreting Historical Aboriginal

Treaties

[567] Regarding the process followed by trial judges, the Huron and Superior

Plaintiffs’ analogy to the factual matrix in contract cases is not entirely apt. In a

historical Aboriginal treaty case, the examination of the surrounding factual

circumstances analysis goes well beyond what is typical in a contract case.

Usually, a court tasked with interpreting a contract starts with the words of the

agreement, and where there is ambiguity as to their meaning, applies the evidence

adduced at trial to give the necessary context to the words chosen by the parties.

⁴⁷¹Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at

para. 80.

⁴⁷²R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915, at para. 18.

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This generally involves viva voce evidence from one or more of the participants in

the contract negotiation. Often, the trial judge is also called upon to review the

contracting parties’ communications. An analysis of a contract’s factual matrix,

while important, is thus not a particularly complex or novel exercise. It is consistent

with the fact-finding function that trial courts engage in every day across the

country. To put it colloquially, it is the bread and butter of trial courts.

[568] Contrast this typical process with the far more extensive exercise a trial court

engages in when interpreting a historical Aboriginal treaty. Courts recognize that

the text of historical Aboriginal treaties “often reflect the views and biases of the

powerful” and that to understand the “truth”, they must go “well beyond the words

of a single agreement”.⁴⁷³A finding of ambiguity in the treaty language is not

necessary to have regard to extrinsic evidence.⁴⁷⁴The extrinsic evidence helps the

courts see how the parties understood the terms of the treaty, and such an

appreciation is “of assistance in giving content to the term or terms.”⁴⁷⁵

Consequently, in a historical Aboriginal treaty case, the surrounding circumstances

of the treaty are as important as the document’s text. The significance of the factual

matrix is heightened, and a court must undertake an extensive review of the

historical circumstances to interpret the treaty properly.

⁴⁷³Kate Gunn, “Agreeing to Share: Treaty 3, History & the Courts” (2018) 51:1 U.B.C.L. Rev. 75, at p. 92.

⁴⁷⁴Marshall, at para. 11.

⁴⁷⁵Marshall, at para. 11, quoting R. v. Taylor and Williams (1981), 66 C.C.C. (2d) 227 (Ont. C.A.), at p.

236, leave to appeal refused, [1981] S.C.C.A. No. 377.

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[569] The cases at bar serve as good examples of the nature of that process.

There was, of course, no direct evidence from any party who was present during

the negotiation and execution of the Robinson Treaties. The trial judge accepted

evidence from 11 experts and heard from various Elders and Chiefs. She reviewed

approximately 30,000 pages of historical documents, including the Treaties

themselves, reports, maps and diaries, and a similarly lengthy volume of

secondary source material. To properly understand the parties’ intentions, she had

to put the Robinson Treaties in their historical context. This meant reviewing the

evolving nature of the relationship between Aboriginal peoples and Europeans

over several decades. It also included a review of the conduct of the parties after

the execution of the Treaties. The trial took 67 sitting days and was followed by

closing submissions, which lasted another 11 days.

[570] In a case centred on the interpretation of a historical Aboriginal treaty, the

trial judge is called upon to conduct a process akin to a judicial inquiry. It is an

extensive analysis where the judge is acting both as judicial officer and historian.

Like the historian, the trial judge must sort through, piece together, and try to make

sense of a diverse array of source material that usually illuminates the incomplete,

tenuous, and questionable nature of the parties’ agreement. In order to resolve the

parties’ dispute in their judicial role, however, they must go a step further and make

factual inferences to fill the inevitable gaps in the record. Experts present evidence

to help the trial judge in drawing those inferences, and the trial judge must evaluate

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the weight to give those opinions against the record of source documents. There

are hard historical facts that may be revealed in this process, but generally

inferences and opinions outnumber those facts.

[571] Where the court is engaged in drawing conclusions from competing

interpretations of the historical record, it cannot be credibly argued that there is

only one correct interpretation. This is because:

[T]reaties have a social life and generate a multiplicity of

meanings, interpretations, expectations and hopes.

Treaties have a social life insofar as they carry relational

qualities, capacities and potentialities that concern and

engage humans, institutions and the land. This is a social

life that brings Indigenous and non-Indigenous regimes

of value and historicity into coexistence and, therefore,

into dialogue.

…

Once signed, treaties become key actors in the

relationship

between

governments,

industries,

Indigenous people and the land; they play a major role in

the formation, transformation and deployment of these

relationships. Once ratified, treaties are the starting point

of a relationship, not an end in themselves. Their future

and deployment are fraught with potentialities,

uncertainties and indeterminacy.⁴⁷⁶

[572] Ultimately, the study of history is not mathematics. It is all about context,

perspective, and judgment. To use the words of the American writer, Thomas

Flanagan, to properly understand a historical event, a historian must take that

⁴⁷⁶Sylvie Poirier & Clinton N. Westman, “Living Together with the Land: Reaching and Honouring

Treaties with Indigenous Peoples” (2020) 62 Anthropologica 236, at p. 241 (citations omitted).

Page: 247

event and “turn it in one’s fingers until all the lights had played upon its surfaces.”⁴⁷⁷

A trial judge in a historical Aboriginal treaty case must do the same. They are

required to consider the intention of the signatory parties from all perspectives and

in light of the historical context.

[573] A trial judge must work diligently to sift through the historical record and

come to a conclusion that is sensible and in accord with the evidence. Where a

trial judge undertakes that task with diligence, carefully considers the competing

viewpoints, and weighs the evidence to reach an available conclusion without

making a palpable and overriding error or an extricable legal error, an appellate

court oversteps its proper role if it interferes and asserts its own conclusion. As

McLachlin J. (as she then was; dissenting, but not on this point) stated in Marshall,

the “goal of treaty interpretation is to choose from among the various possible

interpretations of common intention the one which best reconciles the interests of

both parties at the time the treaty was signed”.⁴⁷⁸In my view, it is not open to an

appellate court to step in after the trial and declare that theirs is the only valid

interpretation of the historical record.

[574] Thus, the rationale for deference is much better established in a historical

Aboriginal treaty case than in an ordinary contract case. This is especially true in

⁴⁷⁷Thomas Flanagan, The Tenants of Time (New York: Dutton, 1988), at p. 85.

⁴⁷⁸Marshall, at para. 73(3).

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light of the fact that a trial judge’s determination of the parties’ common intention

often settles the legal issues. For example, in the cases at bar, the key

determination to be made by the trial judge was the parties’ intention in inserting

the augmentation clauses into the Robinson Treaties. Once she answered that

question, very little legal analysis was required. It is therefore unhelpful to suggest

that there are distinct stages to a trial judge’s analysis, each of which could be

subject to different standards of review.

[575] I also note that there must be some value placed in the trial process itself.

Based on the Supreme Court’s comments in Housen, we presume trial judges to

be as competent as appellate judges in resolving disputes justly.⁴⁷⁹We further

accept that trial judges are in a privileged position vis-à-vis their appellate

counterparts to engage with the record, watch and listen to the parties, and make

findings of fact, and that with repeated experience of carrying out this process,

there comes expertise.⁴⁸⁰In the context of historical treaty interpretation, where

reconciliation is the animating principle, the trial judge’s expertise and process

should be especially respected.

[576] Here, for example, the trial judge took extensive efforts to involve and hear

from the Indigenous Treaty partners. She conducted the proceedings in various

⁴⁷⁹Housen, at para. 11.

⁴⁸⁰Housen, at para. 13, citing Anderson v. Bessemer (City), 470 U.S. 564 (1985), at pp. 574-75.

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Indigenous communities, immersed herself in the teachings of these communities’

many knowledge keepers, and permitted Anishinaabe ceremony to come into the

courtroom and the court process, through witnesses, counsel, and members of the

First Nations. For this court to intervene not only undervalues the trial judge’s

comprehensive process, but suggests that the involvement of the Treaty partners,

particularly the Indigenous signatories, did not make the trial judge better situated

to decide the case. That cannot be the intention of a treaty interpretation exercise

meant to promote reconciliation.

[577] In summary, I would find that the standard of review applicable to the trial

judge’s analysis of the Robinson Treaties is palpable and overriding error.

Extricable errors of law should be reviewed on a correctness standard.

Application of Legal Principles

[578] In the present cases, the trial judge carefully considered the historical

evidence and made extensive references to it in her judgment. Her interpretation

of the Treaties was available to her, as it was well rooted in the evidence. It is free

from palpable and overriding error or extricable legal error.

[579] Ontario’s complaints that the trial judge ignored relevant evidence are not

borne out by an examination of the record. In reality, these arguments are directed

to the degree of emphasis that the trial judge placed on various parts of the record.

The weight given by a trial judge to individual pieces of evidence is a choice that

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is well within a trial judge’s discretion and is not properly the subject of appellate

correction.

[580] Based on the foregoing, I would find no basis for this court to interfere with

the trial judge's interpretation of the Robinson Treaties.

(2) Fiduciary Duty

Overview

[581] There are two distinct types of fiduciary duty that may arise in the cases at

bar. They were described by Wagner J. (as he then was), in Williams Lake as

follows:

A fiduciary obligation may arise from the relationship

between the Crown and Indigenous peoples in two ways.

First, it may arise from the Crown’s discretionary control

over a specific or cognizable Aboriginal interest:

Manitoba Metis Federation, at paras. 49 and 51;

Wewaykum, at paras. 79-83; Haida Nation, at para. 18;

T.R., at para. 180-81. Because this obligation is specific

to the relationship between the Crown and Indigenous

peoples, it has been characterized as a “sui generis”

fiduciary obligation: Wewaykum, at para. 78; Guerin, at

p. 385; Sparrow, at p. 1108. Second, a fiduciary

obligation may arise where the general conditions for a

private law ad hoc fiduciary relationship are satisfied —

that is, where the Crown has undertaken to exercise its

discretionary control over a legal or substantial practical

interest in the best interests of the alleged beneficiary:

Manitoba Metis Federation, at para. 50; Alberta v. Elder

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Advocates of Alberta Society, 2011 SCC 24, [2011] 2

S.C.R. 261, at para. 36; T.R., at paras. 182 and 217.⁴⁸¹

[582] The trial judge found that the Crown owes an ad hoc fiduciary duty, but not

a sui generis fiduciary duty, to the Treaty beneficiaries regarding the augmentation

clauses.⁴⁸²As I will explain in this section of my reasons, in reaching her conclusion

regarding the ad hoc fiduciary duty, the trial judge made two significant legal errors

in her analysis, which render her finding unsustainable.

[583] First, there is an unresolvable discrepancy between the nature of the

fiduciary duty identified in the trial judge’s reasons and the one found in her

judgments. Somehow, the scope of the duty expanded significantly in the process

of settling the judgments. In the reasons, the content of the fiduciary is limited to

procedural obligations in implementing the augmentation clauses. However, in the

judgments, the fiduciary duty applies to the entire process of the Crown making

payments under these clauses.

[584] Second, the trial judge failed to apply the test for ad hoc fiduciary duties

properly. She erred in law in concluding that the Crown agreed to act solely in the

best interests of the Treaty beneficiaries concerning the Treaty augmentation

⁴⁸¹Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4,

[2018] 1 S.C.R. 83, at para. 44.

⁴⁸²Stage One Reasons, at paras. 512, 533.

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clauses. This was not possible because it would put the Crown in an inevitable

conflict of interest.

[585] I see no error in the trial judge’s conclusion that there is no sui generis

fiduciary duty in the circumstances. I will explain why courts should be cautious in

expanding the scope of the sui generis fiduciary duty where the actions of the

Crown are more in the nature of a public rather than a private duty.

Ad Hoc Fiduciary Duty

(i)

Nature of the Duty

[586] An ad hoc fiduciary duty arises where there is: (1) an undertaking by the

alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a

defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal

or substantial practical interest of the beneficiaries that stands to be adversely

affected by the alleged fiduciary’s exercise of discretion or control.⁴⁸³

[587] The trial judge found that the Crown assumed an ad hoc fiduciary duty under

the Treaties.⁴⁸⁴In coming to this decision, she held that all three elements of the

test for an ad hoc fiduciary duty were met. First, the Crown undertook to act

exclusively in the best interests of the Treaty beneficiaries. The trial judge found

⁴⁸³See Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36;

Manitoba Metis, at para. 50; and Williams Lake, at para. 162, per Brown J. (dissenting, but not on this

point).

⁴⁸⁴Stage One Reasons, at para. 533.

Page: 253

that there was no competing interest or duty for the Crown to engage in a process

to determine if economic circumstances warranted an increase in the annuities.⁴⁸⁵

Second, the Treaty beneficiaries constituted a defined class of persons vulnerable

to the Crown’s control.⁴⁸⁶Third, the beneficiaries stood to be adversely affected

because of the discretionary control of the Crown over the annuity increase.⁴⁸⁷

[588] In my view, the trial judge made an error of law in holding that the Crown

undertook to act exclusively in the best interests of the Treaty beneficiaries. At trial,

Ontario and Canada submitted that they could not owe an ad hoc fiduciary duty to

the Treaty beneficiaries in paying monies under the augmentation clauses

because they cannot act with exclusive or utmost loyalty to them. They argued that

it would put them in a conflict of interest if, in paying out monies under the

augmentation clauses, they had to place the interests of the Treaty beneficiaries

over the interests of all other members of society.

[589] The trial judge appeared to recognize the implications of a broad-based

fiduciary duty finding. She attempted to resolve that potential conflict of interest by

narrowing the scope of the fiduciary duty she was imposing. That duty would not

relate to the results of the Treaty augmentation process (i.e., the actual setting and

paying of compensation). Instead, it would be procedural and only apply to the

⁴⁸⁵Stage One Reasons, at paras. 524-26.

⁴⁸⁶Stage One Reasons, at para. 514.

⁴⁸⁷Stage One Reasons, at paras. 520-23.

Page: 254

process to determine whether the compensation should be paid. This was most

clearly stated in para. 525:

The Crown argument that an ad hoc fiduciary duty

analysis fails because the Crown cannot act with

exclusive or utmost loyalty to the Anishinaabe because it

“wears many hats” is based on a faulty premise. The

Crown focused on the land as the interest at stake;

however, the interest at stake is embedded in the

augmentation clause. It is a promise to engage in the

process of implementing the conditional augmentation

promise. The legal interest subject to the duty is not in an

absolute right to increases and is not in relation to the

administration of the land. Rather, the legal interest

created by the augmentation clause is to engage in the

process to determine whether increases are payable.

The right to have the Crown engage in the process came

into effect upon the signing of the Treaties and continues

to exist today.⁴⁸⁸

[590] Throughout her reasons, the trial judge was at pains to emphasize that the

ad hoc fiduciary duty was process-based and not results-based:

 “Specifically, I find that the Crown undertook to act exclusively in the

best interest of the Treaties’ beneficiaries in their promise to engage

in a process to determine if the economic circumstances warrant an

increase to the annuities.”⁴⁸⁹

 “The Crown reminded th[e] court that a finding of ad hoc fiduciary duty

on the part of the Crown would be rare. However, the circumstances

⁴⁸⁸Stage One Reasons, at para. 525.

⁴⁸⁹Stage One Reasons, at para. 519.

Page: 255

in this case, being a duty to engage in a process to meet a treaty

promise, may constitute one of those rare cases. The Crown has no

other conflicting demands when it comes to engaging in the

process.”⁴⁹⁰

 “The best interests define the standard of conduct of the fiduciary; they

do not define the outcome. It is the standard of conduct that defines,

in general terms, the duties of the fiduciary. As the court said in

Williams Lake, the Crown will fulfil its fiduciary obligation by meeting

the prescribed standard of conduct, not by delivering a particular

result.”⁴⁹¹

 “For example, the Crown has discretion on when and how it provides

sufficient information to allow the Anishinaabe, or a court on review, to

assess the Crown’s calculations of net Crown revenues. The

discretion is subject to the duties of a fiduciary and, therefore, is not

unfettered and must be carried out within the parameters of the duty

of honour and the duties of loyalty and utmost good faith.”⁴⁹²

 “I am satisfied that an ad hoc fiduciary duty arises in the context of the

Robinson Treaties and attaches to the Treaties’ promise to engage

⁴⁹⁰Stage One Reasons, at para. 526 (footnote omitted).

⁴⁹¹Stage One Reasons, at para. 530 (footnote omitted).

⁴⁹²Stage One Reasons, at para. 532.

Page: 256

with the process to determine if the Crown can increase the annuities

without incurring loss (based on a calculation of relevant revenues and

expenses to determine net Crown revenues).”⁴⁹³

[591] The point the trial judge was making was that the Crown was not put in an

untenable position because it was not required to favour the Treaty beneficiaries

over the interests of other residents of Ontario, as there was no competing duty

regarding procedural matters. By limiting the scope of the duty, she tried to avoid

placing the Crown in an inherent conflict of interest.

[592] Notwithstanding the foregoing, the trial judge greatly expanded the scope of

the Crown’s fiduciary duty in settling the judgments for these cases. Gone was the

notion of a limited procedural-based fiduciary duty, and in its place was a broad,

substantive fiduciary duty on the Crown to implement the augmentation clauses.

[593] The judgment in the Superior Plaintiffs’ action reads, in part, as follows:

[1] THIS COURT ADJUDGES AND DECLARES THAT,

considered apart from the pleaded defences based on

statutes of limitation, res judicata and laches, including

acquiescence, and without making a determination as to

the respective responsibilities and liabilities of Canada

and Ontario:

a) Pursuant to the Robinson Superior Treaty of

1850, the Crown is obligated to increase, and the

First Nation Treaty Parties have a collective treaty

right to have increased, from time to time, the

⁴⁹³Stage One Reasons, at para. 533.

Page: 257

promised annuity payment of £500 (or $2,000) if net

Crown resource-based revenues from the Treaty

territory permit the Crown to do so without incurring

loss, with the amount of annuity payable in any

period to correspond to a fair share of such net

revenues for that period;

b) To fulfill its obligation in (a) above, the Crown:

i. is required to periodically engage in a

process, in consultation with the First Nation

Treaty parties, to determine the amount of

net Crown resource-based revenues; and

ii. if there are sufficient Crown resource-

based revenues, to permit the Crown to pay

an increased annuity amount without

incurring loss, is required to pay any such

increase;

c) In fulfilling these obligations and requirements of

the augmentation promise, the Crown is subject to

the duties flowing from the honour of the Crown and

the fiduciary duty which the Crown owes to the First

Nation Treaty parties[.] [Emphasis added.]

[594] Identical language is used in the judgment for the action brought by the

Huron Plaintiffs.

[595] Clearly, the text of the judgments is not restricted to process. The trial judge

is ordering that the Crown has an obligation to pay an increased annuity amount

where it can do so without incurring a loss. In fulfilling that obligation, the Crown is

subject to a fiduciary duty. The notion of a limited, procedural-based fiduciary duty,

as articulated in the reasons, is therefore not consistent with the judgments

rendered by the trial judge.

Page: 258

[596] It is well settled in the jurisprudence that an appeal is from the order or

judgment rendered in the court below and not the reasons that are given in support

thereof.⁴⁹⁴Thus, we must take the judgments that the trial judge signed as

reflecting her finding on the scope of the Crown’s fiduciary duty. As I will discuss

in the next section of my reasons, however, regardless of whether the Crown’s

fiduciary duty is broad-based and substantive or narrow and procedural, the trial

judge erred in law in finding an ad hoc fiduciary duty.

(ii) Error in Imposing an Ad Hoc Fiduciary Duty

(i)

Substantive Fiduciary Duty

[597] Concerning the broad-based and substantive fiduciary duty, Ontario submits

that it is impossible for a government to act with the utmost good faith to only one

group in society when making policy decisions. It argues that because the Crown

“wears many hats”, it must balance the interests of all members of society and

cannot benefit one group over the others. Binnie J. articulated the “many hats”

argument in Wewaykum:

When exercising ordinary government powers in matters

involving disputes between Indians and non-Indians, the

Crown was (and is) obliged to have regard to the interest

of all affected parties, not just the Indian interest. The

Crown can be no ordinary fiduciary; it wears many hats

and represents many interests, some of which cannot

help but be conflicting: Samson Indian Nation and Band

v. Canada, [1995] 2 F.C. 762 (C.A.). As the Campbell

⁴⁹⁴Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168 (C.A.), at para. 10.

Page: 259

River Band acknowledged in its factum, “[t]he Crown’s

position as fiduciary is necessarily unique” (para. 96). In

resolving the dispute between Campbell River Band

members and the non-Indian settlers named Nunns, for

example, the Crown was not solely concerned with the

band interest, nor should it have been. The Indians were

“vulnerable” to the adverse exercise of the government’s

discretion, but so too were the settlers, and each looked

to the Crown for a fair resolution of their dispute. At that

stage, prior to reserve creation, the Court cannot ignore

the reality of the conflicting demands confronting the

government, asserted both by the competing bands

themselves and by non-Indians.⁴⁹⁵

[598] Similarly, in a recent article, Bryan Birtles argues in favour of a sovereign-

to-sovereign approach to treaty agreements because a “fiduciary relationship

means a fiduciary must put its beneficiary’s interests ahead of anyone else’s. But

such a situation is impossible to maintain between the Crown and a single segment

of society: the Crown has competing interests, including its own, that structurally

preclude it from putting Indigenous interests first.”⁴⁹⁶

[599] The trend in the jurisprudence is to move away from imposing fiduciary

duties on governments in implementing their policy obligations. As the Supreme

Court stated in Elder Advocates, the “Crown’s broad responsibility to act in the

⁴⁹⁵Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 96 (emphasis

omitted).

⁴⁹⁶Bryan Birtles, “Another Inappropriate F Word: Fiduciary Doctrine and the Crown-Indigenous

Relationship in Canada” (2020) 9:1 American Indian L.J. 1, at p. 6 (footnotes omitted).

Page: 260

public interest means that situations where it is shown to owe a duty of loyalty to a

particular person or group will be rare”.⁴⁹⁷

[600] The cases at bar serve as good examples of the difficulty with trying to

shoehorn in a fiduciary duty that does not fit the circumstances. Leonard I. Rotman

writes that a fundamental problem with the law of fiduciary duties is that courts do

not have a proper understanding of why the concept exists, what it was meant to

accomplish, and the purpose it was intended to facilitate.⁴⁹⁸This leads to situations

where the concept is improperly applied. As Rotman states, this “unsophisticated

and often-improper understanding of the fiduciary concept not only results in the

misapplication of its principles, but also allows for the purposeful misuse of its

principles to generate particular results.”⁴⁹⁹

[601] It is important to remember that where an ad hoc duty is found,

[f]iduciaries are obliged to abnegate all self-interest, as

well as those of third parties, and focus solely on the best

interests of their beneficiaries. This requires that

fiduciaries not benefit themselves or third parties,

whether financially or otherwise, from their positions as

fiduciaries….⁵⁰⁰

[602] A finding of a fiduciary duty greatly expands the scope of available remedies.

The availability of those remedies must not drive the analysis of whether such a

⁴⁹⁷Elder Advocates, at para. 44.

⁴⁹⁸Leonard I. Rotman, “Understanding Fiduciary Duties and Relationship Fiduciary” (2017) 62:4 McGill

L.J. 975, at p. 978.

⁴⁹⁹Rotman, at pp. 981-82.

⁵⁰⁰Rotman, at p. 984.

Page: 261

duty is extant. However, I highlight below the extent of the potential damages to

demonstrate that if the trial judge’s finding regarding a broad ad hoc fiduciary duty

were permitted to stand, the result would be inconsistent with her central finding

that there should be a sharing of revenue between the Crown and the Treaty

beneficiaries.

[603] Pursuant to their rights under the ad hoc fiduciary duty, the beneficiaries

would be well within their rights to insist on total compensation of all net resources

and take the position that the Crown has no right to benefit in any manner from the

development of the lands subject to the Treaties. The Crown would be obliged to

strictly account for and pay out all monies received, over and above the associated

expenses. There would be no sharing in the circumstances; the Crown’s only

obligation would be to the Treaty beneficiaries.

[604] In addition to the preceding, the beneficiaries’ right to compensation could

arguably exceed net revenues. As a fiduciary fulfilling its standard of care of the

utmost good faith, the Crown is obliged not to benefit itself or third parties at the

expense of their beneficiaries’ interests. Strict rules against conflicts of interest

enforce the prohibitions against self-dealing and preferring the interests of others.

In enforcing these rules, the courts will not inquire into why the breach occurred

and will brook no arguments regarding why it was justified in the circumstances.

Page: 262

Instead, as Rotman states, “[b]reaching a fiduciary duty is not a question of degree:

it is a binary definition—either a breach has occurred or it has not.”⁵⁰¹

[605] The equitable remedies that flow from such a breach include constructive

trusts, equitable compensation, and disgorgements of profits. Moreover, the

presumption of most advantageous use will be employed in calculating lost

opportunities by a beneficiary wrongfully deprived of property.⁵⁰²

[606] The beneficiaries in these cases could argue that they are entitled to the

revenue generated and what revenue could have been generated by the lands

covered by the Treaties. For example, an argument might be advanced that the

Crown set mining rates at too low a level in order to attract investment, create

good-paying jobs, and generate tax revenue. Arguably such policies prefer the

interests of the Crown or those of third parties over the interests of the Treaty

beneficiaries. The Crown would have the onus of establishing why its policies did

not amount to a breach of its fiduciary duty. In that regard, its arguments about its

public policy motivations in setting its mining royalties would be of no moment.

[607] Based on the foregoing, it is clear that the trial judge’s finding of a broad-

based substantive fiduciary duty cannot stand for two reasons. First, the imposition

of such a duty places the Crown in a conflict of interest. It forces the Crown to

⁵⁰¹Rotman, at p. 1013 (footnote omitted).

⁵⁰²Rotman, at p. 992.

Page: 263

prefer the interests of one group over all others in making policy decisions

regarding the development of a large swath of the province. The trial judge erred

in finding that the Crown agreed to what is essentially a legal impossibility. Second,

the trial judge has provided no reasons to support her finding that such a duty is

owed. On the contrary, her reasons support the opposite conclusion that the duty

is limited to procedural matters only.

(ii) Procedural Fiduciary Duty

[608] Even if the fiduciary duty was limited to procedural matters, Ontario denies

that it could carry out the procedural obligations contemplated by the trial judge’s

reasons with utmost loyalty to the Treaty beneficiaries. It argues that it has control

over information that it cannot be forced to produce. Ontario cites cabinet

confidences on the setting of royalties and land management policies, third-party

confidential business information, and solicitor-client and litigation privileged

documents as examples. For these and other documents, the Crown has a

competing duty to keep the information confidential. In other words, even a limited

procedural-based fiduciary duty would place the Crown in a conflict of interest. I

accept that submission.

[609] In addition, there is no evidence in the record that supports a finding that the

Crown undertook to act exclusively in the best interests of the Treaty beneficiaries

with respect to procedural matters stemming from the augmentation clauses.

Page: 264

Accordingly, to the extent that the trial judge can be found to have only imposed a

procedural-based fiduciary duty, I would order that it also be set aside.

Sui Generis Fiduciary Duty

(i)

Legal Principles

[610] The jurisprudence has developed a unique fiduciary duty that may arise in

certain circumstances in dealings between Aboriginal peoples and the Crown. A

sui generis fiduciary duty was first recognized in Guerin.⁵⁰³It was developed in

response to the political trust doctrine, which held that governments could owe

trust-like obligations to specific people or groups, but that those obligations were

not enforceable in the courts.⁵⁰⁴

[611] Guerin involved a situation where the Musqueam Nation made a claim

against the federal government in relation to the surrender of a portion of their

reserve to a golf club. The focus of the court’s analysis was on the fact that the

Musqueam Nation had Aboriginal title over the land in issue. Dickson J. (as he

then was) explained that the sui generis fiduciary duty arises from the unique

relationship between the Crown and Aboriginal peoples regarding lands subject to

Aboriginal title:

The fiduciary relationship between the Crown and the

Indians has its roots in the concept of aboriginal, native

or Indian title. The fact that Indian Bands have a certain

⁵⁰³Guerin v. The Queen, [1984] 2 S.C.R. 335.

⁵⁰⁴See Tito v. Waddell (No. 2), [1977] 3 All E.R. 129 (Ch.).

Page: 265

interest in lands does not, however, in itself give rise to a

fiduciary relationship between the Indians and the Crown.

The conclusion that the Crown is a fiduciary depends

upon the further proposition that the Indian interest in the

land is inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly transferring its

interest to a third party. Any sale or lease of land can only

be carried out after a surrender has taken place, with the

Crown then acting on the Band's behalf. The Crown first

took this responsibility upon itself in the Royal

Proclamation of 1763. It is still recognized in the

surrender provisions of the Indian Act. The surrender

requirement, and the responsibility it entails, are the

source of a distinct fiduciary obligation owed by the

Crown to the Indians. In order to explore the character of

this obligation, however, it is first necessary to consider

the basis of aboriginal title and the nature of the interest

in land which it represents.⁵⁰⁵

[612] Dickson J. distinguished the political trust jurisprudence on the basis that in

those cases, the party “claiming to be [a] beneficiary under a trust depended

entirely on statute, ordinance or treaty as the basis for its claim”. In contrast, in

Guerin, the interest in the lands was based on “a pre-existing legal right not created

by Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive

order or legislative provision.”⁵⁰⁶

[613] Post-Guerin, there followed a series of cases alleging breaches of fiduciary

duty in circumstances ranging from claims for moving expenses to the provision of

⁵⁰⁵Guerin, at p. 376.

⁵⁰⁶Guerin, at p. 379.

Page: 266

social services. In Wewaykum, Binnie J. placed limits on the applicability of the sui

generis fiduciary duty. He commented as follows:

But there are limits. The appellants seemed at times to

invoke the “fiduciary duty” as a source of plenary Crown

liability covering all aspects of the Crown-Indian band

relationship. This overshoots the mark. The fiduciary duty

imposed on the Crown does not exist at large but in

relation to specific Indian interests. In this case we are

dealing with land, which has generally played a central

role in aboriginal economies and cultures. Land was also

the subject matter of Ross River (“the lands occupied by

the Band”), Blueberry River and Guerin (disposition of

existing reserves). Fiduciary protection accorded to

Crown dealings with aboriginal interests in land (including

reserve creation) has not to date been recognized by this

Court in relation to Indian interests other than land

outside the framework of s. 35 (1) of the Constitution Act,

1982.⁵⁰⁷

[614] Binnie J. went on to refine the nature of the sui generis fiduciary duty as

follows:

I do not suggest that the existence of a public law duty

necessarily excludes the creation of a fiduciary

relationship. The latter, however, depends on

identification of a cognizable Indian interest, and the

Crown’s undertaking of discretionary control in relation

thereto in a way that invokes responsibility “in the nature

of a private law duty”….⁵⁰⁸

[615] The jurisprudence has developed a two-part test for determining whether a

sui generis fiduciary duty arises in the circumstances of a given case. For such a

⁵⁰⁷Wewaykum, at para. 81.

⁵⁰⁸Wewaykum, at para. 85.

Page: 267

duty to apply there must exist both: (1) a specific or cognizable Aboriginal interest;

and (2) a Crown undertaking of discretionary control over that interest.⁵⁰⁹

[616] It is essential to recognize that the nature of this fiduciary duty is distinct from

an ad hoc fiduciary duty in that it permits a balancing of competing interests. Brown

J. (dissenting) described it this way in Williams Lake:

This form of fiduciary duty imposes a less stringent

standard than the duty of utmost loyalty incident to an ad

hoc fiduciary duty. It requires Canada to act — in relation

to the specific Aboriginal interest — with loyalty and in

good faith, making full disclosure appropriate to the

subject matter and with ordinary diligence: Wewaykum,

at paras. 81 and 97. It allows for the necessity of

balancing conflicting interests: Wewaykum, at para.

96.⁵¹⁰

[617] Therefore, unlike the situation with an ad hoc fiduciary duty, discussed

above, it is open to a sui generis fiduciary to act in more than one interest. This is

a fiduciary duty that breaks with the traditional tenets of the doctrine as developed

by the courts of equity. It arose from case-specific circumstances where Canadian

courts found it necessary to impose a higher duty on the Crown in order to protect

Aboriginal interests, but where the courts also recognized that the Crown requires

some degree of flexibility to undertake its duty to the broader public.

⁵⁰⁹Wewaykum, at paras. 79-83; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,

[2004] 3 S.C.R. 511, at para. 18; and Manitoba Metis, at para. 51.

⁵¹⁰Williams Lake, at para. 165.

Page: 268

(ii) Application of Principles

[618] The trial judge found that no sui generis fiduciary duty was established on

the facts of these cases, reasoning:

The first element of the sui generis approach requires the

Plaintiffs to establish that they have a specific or

cognizable Aboriginal interest: the interest must be a

distinctly Aboriginal, communal interest in land that is

integral to the nature of the distinctive community and

their relationship to the land. The Anishinaabe interest in

the territories that became the subject of the Robinson

Treaties was historically occupied and communally held

prior to contact and is, therefore, capable of constituting

a specific or cognizable Aboriginal interest in land in the

pre-Treaty context. There is no controversy on this point.

The Defendants contend, however, that the surrender

that was made as part of the Treaties extinguished the

Anishinaabe’s specific or cognizable Aboriginal interest

in the lands, and, therefore, the pre-existing interest is not

capable of grounding a sui generis fiduciary duty.

I do not have to decide whether the Anishinaabe's

cognizable interest in the land survives the signing of the

Robinson Treaties. This question can be left for another

day because I find that the second element of the sui

generis analysis is not met. That is, there was no Crown

undertaking of discretionary control over the

Anishinaabe’s interest in land, however that interest

might be characterized.

Specifically, I find that neither the Treaties’ text nor the

context in which the Treaties’ promise was made support

the contention that the augmentation clause included the

notion or concept that the Crown would administer the

land on behalf of the Treaties’ beneficiaries. In the

absence of an undertaking in respect of the cognizable

Page: 269

interest in the land, I find that a sui generis fiduciary duty

does not arise from the Robinson Treaties’ promise.⁵¹¹

[619] The Huron Plaintiffs argue that the trial judge erred in not finding a sui

generis fiduciary duty, submitting that the two elements of the duty are satisfied.

First, the augmentation promise is a specific and cognizable interest that is

“distinctly Aboriginal” and in the nature of a private law duty. Second, the

circumstances under which the enhanced annuities are to be paid (i.e., where

Crown revenues from the land allow for it) constitute a Crown undertaking of

discretionary control over the interest.

[620] The Superior Plaintiffs take the position that the trial judge erred in stating

that a sui generis fiduciary duty only arises with respect to interests in land. They

submit that sui generis fiduciary duties can arise in respect of all Aboriginal and

treaty rights recognized under s. 35 of the Constitution Act, 1982, such as

Aboriginal rights to fish and treaty rights to hunt, fish, and trap. In this case, Ontario

conceded that the Treaty beneficiaries have a “right to augmentation of Treaty

annuities”. The Superior Plaintiffs argue that since there is a collective entitlement

covered under s. 35, which is subject to Crown discretionary control, a sui generis

fiduciary duty arises.

⁵¹¹Stage One Reasons, at paras. 509-12.

Page: 270

[621] I would not give effect to the arguments advanced by the Huron and Superior

Plaintiffs for the following reasons.

[622] The Huron and Superior Plaintiffs take the position that the trial judge erred

in restricting sui generis fiduciary duties to interests in land. They submit that the

Supreme Court has not ruled that an interest in land is required to qualify as a

cognizable interest. In other words, the Huron and Superior Plaintiffs’ position is

that the duty has been expanded from the circumstances of Guerin and is

sufficiently flexible to apply in different contexts as required to ensure equitable

results.

[623] I pause to note that the trial judge did not decide this issue on the basis of a

cognizable Aboriginal interest. Nonetheless, the Huron and Superior Plaintiffs

raise important issues about the scope of the sui generis fiduciary duty and where

it may be properly applied. Those issues are worthy of consideration by this court.

[624] When counsel for the Huron and Superior Plaintiffs were asked in oral

argument if the sui generis fiduciary duty had ever been applied in the context of

a treaty, they were unable to point the panel to any applicable case law.

Conversely, the Crown pointed out that the Supreme Court had repeatedly

restricted cognizable Aboriginal interests to pre-existing interests and not interests

founded by treaty, legislation, or executive action.⁵¹²I agree with the Crown’s

⁵¹²See Guerin, at p. 379; Manitoba Metis, at para. 58; and Williams Lake, at paras. 52-54.

Page: 271

submission. Based on the jurisprudence, the Huron and Superior Plaintiffs’

interests as found in the Robinson Treaties would not qualify as a cognizable

Aboriginal interest.

[625] The Huron and Superior Plaintiffs submit that the lack of precedent does not

necessarily preclude the application of a sui generis fiduciary duty. Assuming

without deciding that treaty rights can qualify as a cognizable Aboriginal interest,

the question is whether it is advisable in the circumstances of these cases to find

such a duty. I would answer that question in the negative for two reasons.

[626] First, courts must be careful in identifying a cognizable interest, as was

emphasized by Wagner J. in Williams Lake:

The specific or cognizable Aboriginal interest at stake

must be identified with care. The fiduciary’s obligation is

owed in relation to that interest, and its content will

depend on “the nature and importance of the interest

sought to be protected”: Manitoba Metis Federation, at

para. 49; Wewaykum, at para. 86. If there is no Aboriginal

interest sufficiently independent of the Crown’s executive

and legislative functions to give rise to “responsibility ‘in

the nature of a private law duty’”, then no fiduciary duties

arise — only public law duties: see Wewaykum, at paras.

74 and 85; Guerin, at p. 385; see also D. W. Elliott, “Much

Ado About Dittos: Wewaykum and the Fiduciary

Obligation of the Crown” (2003), 29 Queen’s L.J. 1.⁵¹³

[627] In the instant cases, there is an element of private law duty in the Treaties.

These were resource agreements entered into specifically with the signatory

⁵¹³Williams Lake, at para. 52.

Page: 272

bands. However, that element is overwhelmed by the public law aspects of the

relationship created by the Robinson Treaties. The Treaties engage the Crown’s

responsibility for managing a large section of the northern portion of the province.

The Crown’s responsibilities include not only the setting of mining rates and taxes,

but also the building of infrastructure and community development. This is factually

far removed from the situation in Guerin, which created the sui generis fiduciary

duty based on the Crown policy of acting as an intermediary in the sale and lease

of Aboriginal lands. I am of the view that the Aboriginal interests in the cases at

bar are not sufficiently independent of the Crown’s executive and legislative

functions to ground a cognizable Aboriginal interest.

[628] Second, I also agree with the trial judge’s finding that there was no evidence

of a Crown undertaking of discretionary control over any cognizable interest. Thus,

neither of the requisite elements of a sui generis fiduciary duty were met in the

cases at bar.

(3) Crown Immunity

[629] At trial, Ontario argued that the Huron and Superior Plaintiffs’ claims for

breach of fiduciary duty were barred by s. 28 of the Proceedings Against the Crown

Act (“PACA”).⁵¹⁴Pursuant to s. 28, the Crown is immune against claims for acts or

omissions prior to the date that the PACA came into force (September 1, 1963),

⁵¹⁴Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109 (“PACA”).

Page: 273

except for claims that meet the exception in s. 29(1). That subsection permits a

party to commence an action that could have been enforced by a petition of right

prior to September 1, 1963. Ontario submitted that the Huron and Superior

Plaintiffs’ claims could not be captured by the exception in s. 29(1) because, prior

to the enactment of the PACA, Crown immunity covered all equitable wrongs, not

simply torts.

[630] The trial judge rejected Ontario’s argument by drawing a distinction between

tort claims and claims for equitable relief. She reasoned that, even before the

PACA was enacted, claims for equitable relief could be brought against the Crown

on a petition of right.⁵¹⁵

[631] On appeal, Ontario makes a series of arguments in support of its submission

that the trial judge erred in her consideration of the Crown immunity issue.

However, Ontario only asserts Crown immunity with respect to the Huron and

Superior Plaintiffs’ breach of fiduciary duty claims. Given my finding that the Crown

does not owe a fiduciary duty to the Huron and Superior Plaintiffs regarding the

augmentation clauses, it is unnecessary for me to consider these arguments.

⁵¹⁵Stage Two Reasons, at paras. 79-87.

Page: 274

(4) Limitations Defence

Overview

[632] Ontario’s position is that the Huron and Superior Plaintiffs’ claims for breach

of Treaty are subject to either a twenty-year limitation period (as actions upon a

specialty) or a six-year limitation period (as actions of account or actions for

contract without specialty) under the 1990 Limitations Act.

[633] The 1990 Limitations Act applies by virtue of ss. 2(1)(e), 2(1)(f) and 2(2) of

the Limitations Act, 2002 (the “2002 Limitations Act”).⁵¹⁶These sections provide

that proceedings based on Aboriginal and treaty rights recognized by s. 35 of the

Constitution Act, 1982, or equitable claims brought by Aboriginal people are

“governed by the law that would have been in force with respect to limitation of

actions if this Act had not been passed.” Consequently, the parties agree that if

any limitations legislation applies to these cases, it is the 1990 Limitations Act.

[634] The trial judge rejected the Crown's submission, reasoning that an

Aboriginal treaty is not a contract for limitations purposes, but rather a unique

agreement between the Crown and Indigenous peoples intended to be a part of

Canada’s constitutional fabric.⁵¹⁷She also held that the Robinson Treaties could

not be considered specialties because specialties are a specific type of contract.⁵¹⁸

⁵¹⁶Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. (the “2002 Limitations Act”).

⁵¹⁷Stage Two Reasons, at paras. 149-51.

⁵¹⁸Stage Two Reasons, at para. 153.

Page: 275

Further, even if the Treaties could be characterized as contracts, they could not be

interpreted as specialties, which derive their meaning from their form.⁵¹⁹By

contrast, Aboriginal treaties represent a vast body of promises between the parties

that go beyond the document’s words and must be understood in their full historical

and cultural context.⁵²⁰Finally, the trial judge rejected Ontario’s alternative

argument that the Huron and Superior Plaintiffs’ Treaty claims were actions of

account as contemplated by the 1990 Limitations Act. The trial judge agreed with

the Huron and Superior Plaintiffs that they were seeking equitable compensation

from the Crown, which is unlike a common law accounting.⁵²¹

[635] Although unnecessary, given her conclusion on the application of the 1990

Limitations Act, the trial judge went on to discuss the liberal statutory interpretation

principles in favour of Indigenous peoples that are mandated by Nowegijick.⁵²²She

acknowledged that those principles only apply to legislation that expressly deals

with Indigenous people, not to statutes of general application. However, the trial

judge observed that statutes of general application might attract such special rules

of interpretation in certain circumstances. She reasoned that allowing a technical

defence based on a strict and narrow interpretation of the PACA and the 1990

Limitations Act would effectively terminate the Huron and Superior Plaintiffs’ Treaty

⁵¹⁹Stage Two Reasons, at para. 173.

⁵²⁰Stage Two Reasons, at para. 168.

⁵²¹Stage Two Reasons, at paras. 179-80.

⁵²²Nowegijick v. The Queen, [1983] 1 S.C.R. 29.

Page: 276

rights. Consequently, the trial judge concluded that both the PACA and the 1990

Limitations Act could attract the Nowegijick principles of interpretation.

[636] The trial judge also noted that the Nowegijick principles are connected to the

honour of the Crown. Given that the PACA and the 1990 Limitations Act have a

significant impact on the enforcement of the Crown’s Treaty promises to the Huron

and Superior Plaintiffs, the trial judge concluded that these statutes could be

interpreted according to the duties flowing from the honour of the Crown.

[637] Ultimately, the trial judge found that she would have applied the Nowegijick

principles and the honour of the Crown when interpreting Ontario’s statutory

defences of Crown immunity and limitations, had it been necessary to do so.

However, she did not undertake this analysis since she held that the Crown did not

have immunity from the Huron and Superior Plaintiffs’ breach of fiduciary duty

claims, and the Huron and Superior Plaintiffs were not statute-barred from bringing

their breach of Treaty claims.

[638] Ontario submits that the trial judge erred in her interpretation of the 1990

Limitations Act. Below, I will review the terms of that legislation, utilizing the

modern approach to statutory interpretation to examine Ontario’s arguments. In so

Page: 277

doing, I will use a standard of correctness, as the issue concerns purely legal

questions of statutory interpretation.⁵²³

[639] I note that I will not consider the trial judge’s comments regarding the

Nowegijick principles and the honour of the Crown to interpret the 1990 Limitations

Act. The comments were obiter, and I do not need to consider them to dispose of

this ground of appeal.

Modern Approach to Statutory Interpretation

[640] The modern approach to statutory interpretation was recently summarized

by Côté J. in Pointes Protection Association:

Indeed, this Court has reiterated on numerous occasions

that the modern approach to statutory interpretation

requires that the words of a statute be read “in their entire

context and in their grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of

the Act, and the intention of Parliament” (E. A. Driedger,

Construction of Statutes (2nd ed. 1983), at p. 87, quoted

in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at

para. 21).⁵²⁴

[641] The key point of the modern approach is that statutory interpretation cannot

be founded on the wording of the legislation alone. The court must consider the

⁵²³Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at

para. 33; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 23;

and TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 30.

⁵²⁴1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 6.

Page: 278

purpose of the disputed provision(s) and all of the relevant context, including the

public policy objectives underlying the legislation.

[642] Ultimately, the court must adopt an interpretation that is appropriate in the

circumstances. As Ruth Sullivan notes:

An appropriate interpretation is one that can be justified

in terms of (a) its plausibility, that is, its compliance with

the legislative text; (b) its efficacy, that is, its promotion of

legislative intent; and (c) its acceptability, that is, the

outcome complies with accepted legal norms; it is

reasonable and just.⁵²⁵

Applying the Modern Approach to the 1990 Limitations Act

(i)

No Reference to Aboriginal Treaties

[643] Ontario relies on ss. 45(1)(b), 45(1)(g), and 46 of the 1990 Limitations Act,

which read as follows:

45. (1) The following actions shall be commenced within

and not after the times respectively hereinafter

mentioned,

…

(b) an action upon a bond, or other specialty, except upon

a covenant contained in an indenture of mortgage made

on or after the 1st day of July, 1894;

…

within twenty years after the cause of action arose,

⁵²⁵Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada Inc.,

2014), at § 2.9.

Page: 279

…

(g) an action for trespass to goods or land, simple

contract or debt grounded upon any lending or contract

without specialty, debt for arrears of rent, detinue,

replevin or upon the case other than for slander,

within six years after the cause of action arose,

…

46. Every action of account, or for not accounting, or for

such accounts as concerns the trade of merchandise

between merchant and merchant, their factors and

servants, shall be commenced within six years after the

cause of action arose, and no claim in respect of a matter

that arose more than six years before the

commencement of the action is enforceable by action by

reason only of some other matter of claim comprised in

the same account having arisen within six years next

before the commencement of the action. [Emphasis

added.]

[644] The crux of Ontario's argument is that when the legislature referred to a

specialty, a simple contract or action of account in the 1990 Limitations Act, it

meant to include Aboriginal treaty claims. Ontario provides no authority to support

its submission that the 1990 Limitations Act should be interpreted in this manner.

I also pause to note that Ontario’s attempt to construe Aboriginal treaties as a form

of contract is the antithesis of the position it takes on the Stage One appeal with

respect to the nature of treaties for the purposes of determining the appropriate

standard of review.

[645] The primary difficulty I have with Ontario’s submission is that one would

have thought that if the legislature intended to impose a limitation period for

Page: 280

Aboriginal treaty claims, it would have said just that in the 1990 Limitations Act. In

this regard, the context surrounding ss. 45(1)(b), 45(1)(g) and 46 is important. A

review of the 1990 Limitations Act reveals that the legislature listed numerous

causes of action and designated specific limitation periods for each one. However,

the legislature did not include Aboriginal treaty claims in the statute or identify an

applicable limitation period. For something as unique as Aboriginal treaty claims,

it seems inconceivable that the legislature intended to impose a limitation period

but left litigants to choose which of the limitation periods for a specialty, a simple

contract, or an accounting applied.

[646] Further, in the 2002 Limitations Act the legislature specifically dealt with

Aboriginal treaty claims. This suggests two things: (1) the legislature understood

that Aboriginal treaty claims are distinct and cannot fall under the umbrella of

specialties, contracts, or actions of account; and (2) when the legislature intended

to deal with Aboriginal treaty claims, it did so explicitly.

[647] The words of ss. 45(1)(b), 45(1)(g), and 46 appear to be clear on their face.

The legislature chose to use legal terms like “specialty”, “simple contract” and

“account” to delineate causes of action that will have limitation periods. The

legislature is presumed to know both statutory and common law, and when it uses

Page: 281

such terms, it is assumed to have used them in their correct legal sense.⁵²⁶The

ordinary meaning of the terms should therefore be given effect unless there is a

reason to reject them.

(ii) The Meaning of “Contracts”, “Specialties” and “Accounting”

[648] It is well established in the jurisprudence that a court must consider the entire

context of a statute before settling on what appears, at first blush, to be the plain

meaning of a legislative provision.⁵²⁷

[649] Here, Ontario argues that despite the legislature’s failure to use the term,

“treaty” in the 1990 Limitations Act, this court should interpret ss. 45(1)(b) and

45(1)(g) in conjunction with common law jurisprudence that characterizes

Aboriginal treaties as contracts or specialties. Ontario similarly asserts that based

on a contextual reading of s. 46, the type of claims asserted by the Huron and

Superior Plaintiffs qualifies as an accounting. If Ontario’s propositions are

accurate, they would impact the meaning attributed to the terms, “contract”,

“specialty”, and “accounting”, in the respective provisions, and influence the

interpretation of the 1990 Limitations Act. However, as I will discuss below, I do

⁵²⁶2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 238, per

L’Heureux-Dubé J. (concurring); ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006

SCC 4, [2006] 1 S.C.R. 140, at para. 59; and Sullivan, at §§ 4.23 (fn. 4), 8.9.

⁵²⁷R. v. McColman, 2021 ONCA 382, 156 O.R. (3d) 253, at para. 115. See also Solar Power Network

Inc. v. ClearFlow Energy Finance Corp., 2018 ONCA 727, 426 D.L.R. (4th) 308, at para. 75, leave to

appeal refused, [2018] S.C.C.A. No. 487; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, 437

D.L.R. (4th) 567, at para. 96, per Côté and Brown JJ. (dissenting).

Page: 282

not believe that Ontario’s submissions accurately reflect the current state of the

law.

(i)

Contracts

[650] Ontario concedes that Aboriginal treaties are more than simple contracts but

submits that they are contracts within the meaning of the 1990 Limitations Act. In

support of this argument, Ontario points to several cases that have held Aboriginal

treaties are contract-like. I agree that courts in Ontario and elsewhere in Canada

have observed that treaties are analogous or tantamount to contracts.⁵²⁸

[651] Notwithstanding the foregoing, the trial judge was correct in rejecting this

argument. She relied on a series of cases from the Supreme Court and a statement

from the late Professor Peter W. Hogg that make clear that, although Aboriginal

treaties and contracts may have features in common, they are distinct concepts in

law. She reasoned as follows:

While treaties share some characteristics of contracts,

that is they contain "enforceable obligations based on the

mutual consent of the parties," the Supreme Court

jurisprudence of the last three decades has been clear

that treaties constitute a unique type of agreement. The

following excerpts from the Supreme Court jurisprudence

are examples of this view:

Sioui:

⁵²⁸See Pawis v. Canada, [1980] 2 F.C. 18, at para. 9(i); Badger, at para. 76; and Fletcher v. Ontario,

2016 ONSC 5874, at para. 118.

Page: 283

A treaty with the Indians is unique …

it is an agreement sui generis which is

neither created nor terminated

according to the rules of international

law.

Badger:

First it must be remembered that a

treaty represents an exchange of

solemn promises between the Crown

and the various Indian nations. It is an

agreement whose nature is sacred.

Sundown:

Treaties may appear to be no more

than contracts. Yet they are far more.

They are a solemn exchange of

promises made by the Crown and

various First Nations. They often

formed the basis for peace and the

expansion of European settlement. In

many if not most treaty negotiations,

members of the First Nations could

not read or write English and relied

completely on the oral promise made

by the Canadian negotiators. There is

a sound historical basis for

interpreting treaties in the manner

summarized in Badger. Anything else

would amount to a denial of fair

dealing and justice between the

parties.

Marshall:

Aboriginal treaties constitute a unique

type of agreement and attract special

rules of interpretation.

Finally, constitutional scholar, Peter W. Hogg, writes:

An Indian treaty has been described as

unique or “sui generis”. It is not a treaty at

Page: 284

international law and is not subject to the

rules of international law. It is not a contract,

and is not subject to the rules of

contract…⁵²⁹

[652] Thus, the weight of the jurisprudence is to the effect that, while Aboriginal

treaties are comparable to contracts and may share similar features, they are

different legal instruments. Treaties share with contracts the mutual exchange of

consideration and obligations. Yet, the nature of the obligations that flow from

these agreements are much different from a contract. Aboriginal treaties include

concepts that are foreign to the law of contract, including the honour of the Crown

and the protections contained in s. 35 of the Constitution Act, 1982, both of which

create unique substantive legal obligations towards Indigenous peoples. The trial

judge did not err in finding that Aboriginal treaties cannot be considered contracts

within the meaning of the 1990 Limitations Act.

(ii) Specialty

[653] Ontario submits that the trial judge wrongly concluded that actions for breach

of an Aboriginal treaty could not be actions upon a specialty within the meaning of

s. 45(1)(b) of the 1990 Limitations Act. It argues that a specialty is a disposition of

property made in a particular form: the document must contain a promise,

obligation, or covenant which is signed, sealed, and delivered with the intention to

bind the parties in their act and deed. According to Ontario, while a specialty is an

⁵²⁹Stage Two Reasons, at paras. 127-28 (footnotes omitted).

Page: 285

obligation under seal securing a debt, the debt need not exist when the specialty

is made and sealed; it may be a future debt.

[654] Ontario asserts that the question of whether the Robinson Treaties secure

a debt, and the extent of any amount owing thereunder, should have been deferred

to Stage Three as a genuine issue requiring a trial. Its position is that the Robinson

Treaties were made and were intended to be made under seal. To the extent that

the Huron and Superior Plaintiffs contest the Treaties’ seal, Ontario claims that

such arguments involve questions of fact requiring the benefit of evidence to be

adduced at the Stage Three hearing.

[655] These submissions do not persuade me. The trial judge observed that the

record was unclear on whether the Treaties were sealed but concluded that it was

unnecessary for her to determine the issue. She assumed that the Treaties were

sealed, and focused her analysis on the fundamental differences between a

specialty and a treaty:

However, even if one were to assume that the Treaties

were sealed and that the presence of seals somehow

transformed these Treaties into specialties, this

characterization would conflict with the findings on Stage

One that the Treaties must be understood in their full

historical and cultural context. In contrast, the meaning of

specialties comes from the form of the document itself.

In Friedmann, the Supreme Court briefly outlined the

history of the practice of sealing documents, stating:

The seal rendered the terms of the

underlying transaction indisputable, and

Page: 286

thus

rendered

additional

evidence

unnecessary… A contract under seal

derived, and still derives, its validity from the

form of the document itself. [Citations

omitted.]

Such a document is, by definition, in stark contrast to the

findings on Stage One, with respect to the vast historical,

cultural, and Anishinaabe legal perspective that underlies

the meaning of the Treaty documents.

The Treaties must be interpreted according to treaty

interpretation principles settled in the jurisprudence,

which is fully outlined in Stage One of this proceeding.

On the other hand, the form controls the substance in a

specialty. But relying only on the form of the written

document is anathema to the task of treaty interpretation.

The finding in Stage One was that the treaty represented

a vast body of understanding of the parties in their

dealings with one another beyond the mere words of the

document….⁵³⁰

[656] I agree with and adopt the trial judge’s analysis. In considering Ontario’s

submission that a treaty is a form of specialty, the correct place to start is a review

of the nature of an Aboriginal treaty and a specialty. As noted above, even in cases

where the text of an Aboriginal treaty does not include an ambiguity, courts must

have regard to the context surrounding its negotiation and execution to understand

its meaning. The opposite is true with a specialty. It is a unique form of legal

document that permits the parties and the court to look strictly at what is within its

four corners to ascertain its meaning. The whole point of creating a specialty

⁵³⁰Stage Two Reasons, at paras. 164-68 (footnotes omitted).

Page: 287

agreement is to avoid the type of analysis that is required in Aboriginal treaty

interpretation.

[657] The fundamental differences between these types of agreements leads me

to conclude that the trial judge was correct in finding that the Robinson Treaties

are not specialties. It is therefore unnecessary for me to consider the trial judge’s

additional finding that the Robinson Treaties do not secure a debt.

(iii) Accounting

[658] Ontario submits that the trial judge erroneously held that the Huron and

Superior Plaintiffs’ actions could not be viewed as actions for an accounting within

the meaning of s. 46 of the 1990 Limitations Act. She reasoned that the actions

were seeking equitable compensation, not a common law accounting, and thus the

claims did not fall within the ambit of s. 46.⁵³¹According to Ontario, this was an

error because an action for an accounting is incidental to an action brought in

contract, or any other relationship where there is an equitable or legal duty to

account.

[659] I would not give effect to this ground of appeal. In my view, it can be

dismissed summarily. As Dan Zacks notes in his authoritative blog on limitation

periods, an analysis pursuant to the 1990 Limitations Act “always began by

⁵³¹Stage Two Reasons, at paras. 178-79.

Page: 288

‘classifying the action’ – [i.e.,] determining which form of action included the cause

of action being advanced.”⁵³²

[660] The form of action for an “action of account” was described by the Ontario

Law Reform Commission in its Report on the Limitation of Actions as follows:

The actions of account expressly referred to in section 46

probably are only those which would have been brought

at common law and do not include equitable actions of

account. Section 46 was originally enacted to remove the

exception of merchants’ accounts contained in section 3

of The Limitations Act, 1623. Section 3 provided, inter

alia, that all common law actions of account, except

merchants’ accounts, must be brought within six years

after the cause of action arose. When section 46 first

became law, it clearly only referred to merchants’

accounts. Owing to minor changes in punctuation and

wording, the section now is ungrammatical and appears

on the surface to apply to all actions of account, although

it is unlikely that the changes were intended to produce

the latter result.⁵³³

[661] Section 46 of the 1990 Limitations Act, which was intended to be limited to

merchants’ accounts, has no application to the instant cases. Therefore, I would

reject this ground of appeal.

⁵³²Dan Zacks, “Ontario: There has never been a limitation period for a breach of treaty claim” (16 July

2020), online (blog): Under the Limit: Developments in Canadian Limitations Jurisprudence:

<http://limitations.ca/?p=1134>.

⁵³³Ontario Law Reform Commission, Report on the Limitation of Actions (Toronto: Department of

Attorney General, 1969), at p. 18.

Page: 289

Summary

[662] The legislature chose not to reference Aboriginal treaties in the 1990

Limitations Act, although it did so in the 2002 Limitations Act. This is strongly

suggestive of an intention not to impose a limitation period for claims based on a

breach of an Aboriginal treaty. Ontario’s arguments that the legislature intended to

cover Aboriginal treaty claims under the terms “contract”, “specialty”, or “action of

account” are unpersuasive. As discussed above, these claims are distinct in law

from one based on a breach of an Aboriginal treaty. Accordingly, I would dismiss

this ground of appeal.

C.

DISPOSITION

[663] For the preceding reasons, I would dismiss Ontario’s appeal of the trial

judge’s interpretation of the Robinson Treaties. Regarding fiduciary duty, I would

set aside the trial judge’s finding that the Crown owes the Huron and Superior

Plaintiffs’ a fiduciary duty, and accordingly I do not consider Ontario’s claim of

Crown immunity. Finally, I would dismiss Ontario’s appeal of the trial judge’s

decision on its defence under the 1990 Limitations Act.

[664] In summary, I would grant the appeal from the Stage One proceedings in

part, amend the judgments as set out in Appendix “A” to these reasons, and remit

the matter of the Huron Plaintiffs’ costs for the Stage One proceedings to the trial

judge for reconsideration in accordance with the reasons of Lauwers and Pardu

Page: 290

JJ.A. I would dismiss the appeal from the Stage Two proceedings. I would award

costs of the appeals in the manner set out in the joint reasons.

Released: November 5, 2021 “G.R.S.”

“C.W. Hourigan J.A.”

Page: 291

APPENDIX A: AMENDED STAGE ONE JUDGMENTS

RESTOULE JUDGMENT (Huron Action)

(PARTIAL JUDGMENT - STAGE ONE - RELEASED JUNE 17, 2019)

THROUGH NOTICES OF MOTION for summary judgment brought in the within

action the plaintiffs sought the following declaratory relief, and costs:

1. The plaintiffs move for a declaration that, considered apart from the

pleaded defences based upon statutes of limitation, res judicata, laches and

acquiescence, since 1850 the Crown has been and remains legally

obligated under the Robinson Huron Treaty of 1850 to increase the annuity

under the Treaty from time to time if the territory subject to the Treaty

produced or produces an amount which would enable it to do so without

incurring loss, and that the size of the increase of the annuity is not limited

to an amount based on one pound per person.

2. The plaintiffs acknowledge that in addressing this motion, the parties were

permitted to address and seek determination of particular issues, including:

a) the meaning and legal effect of the phrase “such further sum as

Her Majesty may be graciously pleased to order” in the written text of

the Treaty;

b) whether the revenues that are to be taken into account in

determining whether “the territory subject to the Treaty produced or

produces an amount which would enable it to do so without incurring

loss” are restricted to Crown revenues from the territory;

c) whether gross or net revenues are to be taken into account in

determining whether “the territory subject to the Treaty produced or

produces an amount which would enable it to do so without incurring

loss”;

d) what principle or principles govern the determination of the amount

of the increased annuities;

e) whether the provision that “the amount paid to each individual shall

not exceed the sum of one pound provincial currency ($4) in any one

year, or such further sum as Her Majesty may be graciously pleased

to order” should be indexed for inflation;

Page: 292

ON BEING ADVISED by counsel for the parties near the outset of the summary

trial that there was no dispute regarding issues 2 (b) and 2 (c) noted above, and

that in relation to those issues the parties were in agreement that the revenues

that are to be taken into account in determining whether “the territory subject to the

Treaty produced or produces an amount which would enable it to do so without

incurring loss” are net Crown revenues from the territory;

AND ON BEING REQUESTED BY THE PARTIES to make determinations on

issues 1, 2 (a), (d) and (e) above, as set out in the plaintiffs’ notices of motion, but

without engaging in a line-by•line identification of relevant revenues and expenses

in the public accounts of Canada or Ontario;

AND ON BEING REQUESTED BY THE PLAINTIFFS to make determinations

under Issue 2 (d) above with respect to what types of Crown revenues and

expenses are relevant for the purposes of Augmentation Clause, and on hearing

submissions from counsel for the Attorney General for Canada (“Canada”) that

such determinations should be deferred to the contemplated Stage 3 of this

litigation, and from counsel for Her Majesty the Queen in right of Ontario and the

Attorney General for Ontario, that the Court should make findings with respect to

the intentions of the Treaty parties in 1850 regarding relevant revenues and

expenses, but without reaching definitive determinations regarding relevant

revenues and expenses on the limited evidence before the Court regarding

modern public finances;

AND ON READING the pleadings, the text of the Treaty, the numbered exhibits

entered, the affidavits, expert reports and historical documents, filed, and on

hearing the oral testimony of the witnesses, and on reading and hearing the

submissions of counsel for the parties, and for reasons released on December 21,

2018 (2018 ONSC 7701):

[1]

THIS COURT ADJUDGES AND DECLARES THAT, considered apart from

the pleaded defences based on statutes of limitation, res judicata and laches,

including acquiescence, and without making a determination as to the respective

responsibilities and liabilities of Canada and Ontario:

a) Pursuant to the Robinson Huron Treaty of 1850, the Crown is obligated

to increase, and the First Nation Treaty Parties have a collective treaty right

to have increased, from time to time, the promised annuity payment of £600

(or $2,400) if net Crown resource-based revenues from the Treaty territory

permit the Crown to do so without incurring loss, with the amount of annuity

payable in any period to correspond to a fair share of such net revenues for

that period;

Page: 293

b) To fulfill its obligation in (a) above, the Crown:

i. is required to periodically engage in a process, in consultation with

the First Nation Treaty parties, to determine the amount of net Crown

resource-based revenues; and

ii. if there are sufficient Crown resource-based revenues, to permit the

Crown to pay an increased annuity amount without incurring loss, is

required to pay any such increase;

c) In fulfilling these obligations and requirements of the augmentation

promise, the Crown is subject to the duties flowing from the honour of the

Crown and the fiduciary duty which the Crown owes to the First Nation

Treaty parties;

d) The Crown must diligently implement the augmentation promise, 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;

e) The Crown shall, in a manner consistent with the honour of the Crown,

consult with the First Nation Treaty parties to determine what portion, if any,

of the increased annuity amount is to be distributed by the Crown to the

individual Treaty rights holders in addition to the $4 per person per year they

are already being paid;

f) The augmentation promise is a Treaty right recognized and affirmed by s.

35 of the Constitution Act, 1982.

[2]

THIS COURT ADJUDGES AND DECLARES THAT the principles governing

the Treaty parties’ implementation of the annuity provisions are to accord with this

Court’s determinations that:

a) the Robinson Huron Treaty was negotiated by the Treaty parties around

the Anishinaabe Council Fire at Bawaating (Sault Ste Marie) as a renewal

of the ongoing relationship between the Anishinaabeg and the Crown

grounded in the Covenant Chain alliance, and as a basis for continuing a

mutually respectful and beneficial relationship going into the future; and

b) the Treaty reflects the parties’ common intention that their agreement was

to allow both the Anishinaabeg and the Crown to realize the future

opportunities and potential of the Treaty territory in a manner consistent with

the Anishinaabe principles of respect, responsibility, reciprocity and renewal

Page: 294

and the intention of the Crown to act honourably, with justice or fairness, and

with liberality or benevolence.

[3]

THIS COURT FURTHER ADJUDGES AND DECLARES THAT:

a) The process adopted for purposes of determining the amount of net

Crown resource• based revenues in a particular period must afford sufficient

Crown disclosure of information to enable the First Nation Treaty parties and

the Court, if necessary, to determine the amount of such net revenues;

b) For purposes of determining the amount of net Crown resource-based

revenues in a particular period:

i. relevant revenues to be considered are Crown resource-based

revenues arising directly or in a closely related way to the use, sale,

or licensing of land (which could include the waters) in the Treaty

territory, including mineral and lumbering revenues and other

analogous revenues as received by the Crown both historically and in

the future, but not including personal, corporate or property tax

revenues,

ii. relevant expenses to be considered are Crown expenses related to

collecting, regulating, and supporting relevant revenues, but do not

include the costs of infrastructure and institutions that are built with

Crown tax revenues,

with these definitions to be applied as general principles that are subject to

clarification and further direction by the Court in a future stage of this

proceeding; and

c) Failing agreement amongst the parties, the principles to be applied for

purposes of determining amounts [added text - to be disbursed pursuant to

the augmentation promise from] that are fairly and reasonably equal to a fair

share of net Crown resource-based revenues are subject to further direction

by the Court in a future stage of this proceeding.

d) Where in the exercise of their duties to implement the augmentation

promise the Crown exercises discretion, the discretion must be exercised

honourably, such discretion is not unfettered and is subject to review by the

Courts.

Page: 295

[4]

THIS COURT FURTHER ORDERS AND ADJUDGES THAT the plaintiffs’

alternative claim, supported by Ontario, that the Court should imply a Treaty term

to provide for indexing of the promised annuity payment of £600 (or $2,400), as

augmented to an amount based on £1 (or $4) per person, in order to protect the

First Nation Treaty parties against erosion of the purchasing power of annuities

due to inflation be, and is hereby, dismissed.

[5]

AND THIS COURT FURTHER ORDERS AND ADJUDGES that the plaintiffs

are hereby awarded their costs of this action to date, on the partial indemnity scale,

without reserving to them any right to seek a higher level of indemnity at another

time, and that pursuant to an agreement made between them, Canada and Ontario

are each responsible to pay 50 per cent of such costs, and:

a) that subject to paragraph 4(b) below, the plaintiffs’ costs of this action to

date, including this motion, are hereby fixed in the total amount of

$9,412,447.50; and

b) that the plaintiffs may make further submissions to the Court with respect

to the sum of $303,775.00 they have claimed as further disbursements

incurred by the Robinson Huron Trust. Should the plaintiffs make such

further submissions, the defendants will be entitled to respond.

[6]

THIS JUDGMENT BEARS INTEREST at the rate of three per cent (3%) per

year commencing on December 21, 2018.

Page: 296

CHIEF AND COUNCIL OF RED ROCK FIRST NATION (Superior Action)

(PARTIAL JUDGMENT - STAGE ONE - RELEASED JUNE 17, 2019)

THROUGH NOTICES OF MOTION for summary judgment brought in the within

action the plaintiffs sought the following declaratory relief, and costs:

1. The plaintiffs move for a declaration that, considered apart from the

pleaded defences based upon statutes of limitation, res judicata, laches and

acquiescence, since 1850 the Crown has been and remains legally

obligated under the Robinson Superior Treaty of 1850 to increase the

annuity under the Treaty from time to time if the territory subject to the Treaty

produced or produces an amount which would enable it to do so without

incurring loss, and that the size of the increase of the annuity is not limited

to an amount based on one pound per person.

2. The plaintiffs acknowledge that in addressing this motion, the parties were

permitted to address and seek determination of particular issues, including:

a) the meaning and legal effect of the phrase “such further sum as

Her Majesty may be graciously pleased to order” in the written text of

the Treaty;

b) whether the revenues that are to be taken into account in

determining whether “the territory subject to the Treaty produced or

produces an amount which would enable it to do so without incurring

loss” are restricted to Crown revenues from the territory;

c) whether gross or net revenues are to be taken into account in

determining whether “the territory subject to the Treaty produced or

produces an amount which would enable it to do so without incurring

loss”;

d) what principle or principles govern the determination of the amount

of the increased annuities;

e) whether the provision that “the amount paid to each individual shall

not exceed the sum of one pound provincial currency ($4) in any one

Page: 297

year, or such further sum as Her Majesty may be graciously pleased

to order” should be indexed for inflation;

ON BEING ADVISED by counsel for the parties near the outset of the summary

trial that there was no dispute regarding issues 2 (b) and 2 (c) noted above, and

that in relation to those issues the parties were in agreement that the revenues

that are to be taken into account in determining whether “the territory subject to the

Treaty produced or produces an amount which would enable it to do so without

incurring loss” are net Crown revenues from the territory;

AND ON BEING REQUESTED BY THE PARTIES to make determinations on

issues 1, 2 (a), (d) and (e) above, as set out in the plaintiffs’ notices of motion, but

without engaging in a line-by• line identification of relevant revenues and expenses