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]  
Page: 4  
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]  
Page: 5  
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  
Page: 6  
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  
   
Page: 7  
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  
Page: 8  
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  
   
Page: 9  
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  
Page: 10  
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  
1 Stage One Reasons, at para. 31.  
Page: 11  
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  
2 Stage One Reasons, at para. 89.  
Page: 12  
(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.  
3 Stage 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”.  
4 Stage One Reasons, at para. 79.  
Page: 13  
[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.  
Page: 14  
[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;  
5 Stage One Reasons, at para. 118.  
Page: 17  
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  
Page: 18  
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  
6 Stage One Reasons, at para. 181.  
Page: 19  
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  
Page: 20  
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  
7 Stage One Reasons, at para. 190.  
 
Page: 21  
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.8 First, 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  
8 Stage One Reasons, at paras. 201-3.  
9 Stage One Reasons, at para. 209.  
Page: 22  
[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  
10 Stage One Reasons, at para. 214.  
11 Stage One Reasons, at para. 223.  
Page: 23  
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  
12 Stage One Reasons, at para. 218.  
Page: 24  
[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.13 She found that there was “no other  
reasonable conclusion”.14 The proposed augmentation clause stipulated that the  
annuity would increase if revenues received from the territory permitted the  
government to do so without incurring loss.  
13 Stage One Reasons, at para. 220.  
14 Stage 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  
Page: 26  
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  
15 See Stage One Reasons, at Appendices A and B; Canada, Indian Treaties and Surrenders: From 1680  
to 1890, vol. 1 (Ottawa: Brown Chamberlin, 1891).  
16 See 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 Hudsons 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  
17 See Stage One Reasons, at para. 239. See also Canada, at p. 147.  
18 See 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 Hudsons 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  
19 See Stage One Reasons, at para. 240. See also Canada, at p. 149.  
20 See 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  
21 See Stage One Reasons, at para. 243. See also Canada, at p. 150.  
 
Page: 30  
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  
Page: 31  
granted the appeal.22 Canada’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.24 She found that the Crown must engage in a consultative process with  
the Treaty beneficiaries and pay an increased annuity amount, reflecting a “fair  
22 Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434.  
23 Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199  
(J.C.P.C.).  
24 Stage One Reasons, at para. 3.  
     
Page: 32  
share”, if there are sufficient Crown resource-based revenues to allow payment  
without incurring loss.25 The 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.27 Further, 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  
25 Stage One Reasons, at paras. 3, 568-70.  
26 Stage One Reasons, at para. 397.  
27 Stage One Reasons, at paras, 3, 533 and 568.  
28 Stage One Reasons, at paras. 551-54.  
29 Stage One Reasons, at para. 598.  
30 R. 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.32 She concluded that the  
Anishinaabe understood the Treaties as an agreement to live in harmony with  
settlers and to maintain a relationship in evolving circumstances.33 At 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.34 The 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:  
31 Stage One Reasons, at paras. 398-410.  
32 Stage One Reasons, at paras. 410-58  
33 Stage One Reasons, at para. 423.  
34 Stage One Reasons, at paras. 430-32.  
35 Stage 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 1850.37 She noted that an augmentation clause  
linked to revenues was an innovative solution that reconciled the diverging  
expectations of the Anishinaabe and the Crown.38 Ultimately, the Treaties were  
intended to renew and reinforce an ongoing relationship.  
36 Stage One Reasons, at paras. 459-61.  
37 Stage One Reasons, at para. 462.  
38 Stage 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.39 Specifically, 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.40 Further, 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.42 However, 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.43 The purpose of this duty is to “facilitate supervision of the high degree  
39 Stage One Reasons, at paras. 3, 538.  
40 Stage One Reasons, at para. 533.  
41 Stage One Reasons, at paras. 568-69.  
42 Stage One Reasons, at para. 512.  
43 Stage 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.45 She  
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;  
44 Stage One Reasons, at para. 527.  
45 Stage One Reasons, at para. 553.  
Page: 37  
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  
Plaintiffsalternative 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”.47 Moreover, the effects of inflation could  
46 Stage One Reasons, at paras. 544-72.  
47 Stage One Reasons, at para. 588.  
Page: 38  
be addressed adequately through the augmentation of the annuity.48 The 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.50 The 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”).51 Second, she dismissed Ontario’s argument that  
claims for treaty breaches are properly characterized as claims on a “simple  
48 Stage One Reasons, at para. 593.  
49 Stage One Reasons, at para. 595.  
50 Stage One Costs Reasons, at para. 43.  
51 Proceedings 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”).52 Third, 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?  
52 Limitations Act, R.S.O. 1990, c. L.15 (the “1990 Limitations Act”); Stage Two Reasons, at paras. 109-  
201.  
53 Nowegijick 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  
Page: 45  
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  
54 R. 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.  
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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”.55 We will use the latter term.  
55 Stage 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.56 No 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.57 The  
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  
56 Stage One Reasons, at paras. 321-29.  
57 Marshall, at paras. 9-14, per Binnie J., and as summarized at paras. 78-83, per McLachlin J.  
(dissenting, but not on this point).  
58 Marshall, 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.  
59 Mikisew 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.  
 
Page: 51  
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.”60 He 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.”61 He added: “In my opinion, that notice extends to how, historically, the  
parties acted under the treaty after its execution.”62 The 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  
60 R. 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.  
61 Taylor and Williams, at p. 236.  
62 Taylor and Williams, at p. 236.  
63 Marshall, 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.  
64 Marshall, 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.”66 The 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,68 recognizing 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, 1982,70 and the “first principle” of  
65 Marshall, at para. 78(5), per McLachlin J.  
66 Beckman 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.  
67 Stage One Reasons, at para. 399, and see para. 349.  
68 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at  
para. 76.  
69 Mikisew 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.  
70 Little Salmon, at para. 10, per Binnie J.  
Page: 53  
Aboriginal law.71 This “fundamental objective”72 flows from “the tension between  
the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and  
occupation of Aboriginal peoples”73 and 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,76 which operates  
as a “constitutional principle.”77 Hence: “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.  
71 Mikisew Cree (2018), at para. 22, per Karakatsanis J.  
72 Mikisew Cree (2005), at para. 1, per Binnie J.  
73 Mikisew 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.  
74 Mikisew 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.  
75 Manitoba Metis, at para. 71, per McLachlin C.J. and Karakatsanis J.  
76 Mikisew Cree (2018), at para. 22, per Karakatsanis J.  
77 Little 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.  
78 Haida 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.79 That  
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 Anishinaabes  
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  
79 Mikisew Cree (2005), at para. 28; Sioui, at p. 1035.  
80 Stage One Reasons, at para. 412.  
81 Stage One Reasons, at para. 423.  
 
Page: 55  
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 Treatiesannuities 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.”84 The 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  
82 Stage One Reasons, at para. 347, and see para. 373.  
83 Stage One Reasons, at para. 3.  
84 Stage One Reasons, at para. 459.  
85 Stage One Reasons, at para. 397.  
Page: 56  
without incurring loss.”86 The 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.”88 In her view, the third interpretation “includes the  
second interpretation”.89 She 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.”91 She 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 partiesinterests; it suggests that the  
Treaties were a one-time transaction. As the historical  
and cultural context demonstrates, this was not the case;  
86 Stage One Reasons, at para. 460 (emphasis in the original).  
87 Stage One Reasons, at para. 456.  
88 Stage One Reasons, at para. 461, and see para. 397.  
89 Stage One Reasons, at para. 461.  
90 Stage One Reasons, at para. 461.  
91 Stage One Reasons, at para. 462.  
Page: 57  
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  
92 Stage One Reasons, at para. 465.  
93 Our reasons, at paras. 196-205.  
 
Page: 58  
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.  
94 Canada 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.  
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[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.”95 She 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.”97 She 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,  
95 Stage 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.  
96 Stage One Reasons, at para. 203.  
97 Stage One Reasons, at para. 261.  
98 Stage One Reasons, at para. 255.  
Page: 62  
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.”99 The 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  
99 Stage One Reasons, at para. 161.  
Page: 63  
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,  
100 Stage 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.102 By 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.  
101 Stage One Reasons, at paras. 450-453.  
102 Expert 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.103 The 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  
103 Transcript, 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.104 The 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  
104 Robinson’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.”106 In  
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  
105 Sioui, at p. 1060.  
106 Lac 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.”  
107 West 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,109 are 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.”110 However, 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  
108 Lac La Ronge, at para. 103.  
109 Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, 404 D.L.R. (4th) 512.  
110 Stage 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.112 More  
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  
111 Stage 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  
113 To give it its full name, the “Report of Special Commissioners (R.T. Pennefather, Froome Talfourd,  
and Tho. Washington) appointed on the 8th of 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.114 There  
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  
114 They 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.”  
115 Stage 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.”116 That the  
Anishinaabe, in 1873, asked only for $4, and that non-Indigenous actors  
responded to those requests, cannot demonstrate that the Anishinaabe were not  
ever entitled to more.  
[168] Simon Dawson, a Member of Parliament, wrote to the Governor-General’s  
Secretary in 1873 that “the lands ceded have become sufficiently productive to  
warrant the increased payment of at least $4; if not, of such further sum (over and  
above the $4) as Her Majesty may be graciously pleased to order, as provided for  
in the above cited clause of the treaty.”  
[169] Letters from E.B. Borron, a Member of Parliament, in 1874 and 1875, urged  
Ministers in the Department of the Interior to pay the “full amount of annuity  
stipulated for” in the Treaties, at $4. It is unclear how he reached this interpretation.  
Justice Minister Edward Blake responded with his opinion on July 7, 1875, bas