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Harley Schachter, Duboff Edwards Schachter Law Corporation

Decision shows ‘Anishinaabe perspective matters,’ counsel says

Wednesday, November 17, 2021 @ 4:34 PM | By Amanda Jerome


An Ontario Court of Appeal decision on Treaty claims from the Anishinaabe highlights the importance of the Indigenous perspective on Treaties, counsel involved in the case said, noting that the Court of Appeal and the court below emphasized the “principles of respect, responsibility, reciprocity, and renewal were fundamental to the Anishinaabe’s understanding of relationships.”

Harley Schachter, a partner at Duboff Edwards Schachter Law Corporation in Winnipeg and counsel for the respondent Red Rock First Nation and Whitesand First Nation with Kaitlyn Lewis, said an important takeaway is that the “Anishinaabe perspective matters and you need to bring the evidence of the Anishinaabe perspective.”

Harley Schachter, Duboff Edwards Schachter Law Corporation

Harley Schachter, Duboff Edwards Schachter Law Corporation

He noted that Treaties, “in the proper historical context, took into account” the Indigenous perspective “and so too should an interpretation of their meaning.”

In Restoule v. Canada (Attorney General), 2021 ONCA 779 the Court of Appeal detailed the historical context of the Robinson-Huron Treaty and Robinson-Superior Treaty, which were at the centre of the dispute.

The court explained that 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 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,” the court added.

The Chiefs of the Anishinaabe bands in these areas signed two Treaties with the Crown which, a court release noted, “require the Crown to make an annual payment, referred to as an annuity, to the Anishinaabe, the Treaty beneficiaries.”

The court release also noted that the Treaties “provide for increases of the amount of the annuity from time to time, if there are sufficient revenues from the Treaty territories to enable the Crown to do so without incurring loss, ‘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.’ 

The Robinson-Huron Treaty beneficiaries received an “annuity of approximately $1.70 per person, and the Robinson-Superior Treaty beneficiaries received an annuity of about $1.60 per person” when the treaties were signed in 1850.

In 1875, the court release explained, “the annuities under both Treaties were increased to $4 per person. This was the only increase in the annuities, which have remained at $4 per person for the last 146 years.”

In 2001 and 2014, beneficiaries of the Treaties commenced legal action against Canada and Ontario, “alleging breaches of the Treaties’ annuity provisions.” A court release noted that the “two claims were joined and, at the parties’ request, the proceedings were divided into three stages.”

“Stage One,” the court explained, “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” and “Stage Three, which has yet to take place, will determine the remaining issues, including damages and the allocation of liability between Canada and Ontario.”

The court noted that in the decision on Stage One, Justice Patricia Hennessy, of the Superior Court of Justice, held that the Crown has “a mandatory and reviewable obligation to increase the Robinson Treaties’ annuities.”

Justice Hennessy found that the Crown “must engage in a consultative process with the Treaty beneficiaries and pay an increased annuity amount, reflecting a ‘fair share’, if there are sufficient Crown resource-based revenues to allow payment without incurring loss.”

She 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.”

Justice Hennessy also determined 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.”

“Further,” the court noted, the trial judge “provided guiding principles for what constitutes relevant Crown revenues and expenses” and she “rejected Ontario’s submission that an indexation term could be implied in the Treaties.”

Justice Hennessy 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.”

“Specifically,” the court added, she “held that the Crown has a duty to engage in a process to determine whether the annuities can be increased without incurring loss.”

“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,” the court noted about Justice Hennessy’s decision.

Justice Hennessy also found that “a sui generis fiduciary duty did not arise from the Treaties’ promise.”

“However,” the court explained, “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.”

The purpose of this duty, the court stressed, is to “facilitate supervision of the high degree of discretionary control assumed by the Crown over the lives of Indigenous peoples.”

Justice Hennessy 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.”

“The Huron Plaintiffs were ultimately awarded a total of $9,412,447.50 and the Superior Plaintiffs were awarded $5,148,894.45,” the court explained.

In Justice Hennessy’s Stage Two decision, she held that “Crown immunity and provincial limitations legislation did not operate to bar the Huron Plaintiffs’ and Superior Plaintiffs’ claims.”

First, Justice Hennessy “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).”

Second, the trial judge “dismissed Ontario’s argument that claims for treaty breaches are properly characterized as claims on a ‘simple contract’ or a ‘speciality’, or as an ‘action of account’, and therefore statute barred by the former Limitations Act (the ‘1990 Limitations Act’).”

And third, Justice Hennessy “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.”

Justice Hennessy therefore granted “partial summary judgment for the Huron and Superior Plaintiffs on the questions of limitations and Crown immunity” and 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.”

In her analysis, the trial judge stressed that the “principles of respect, responsibility, reciprocity, and renewal were fundamental to the Anishinaabe’s understanding of relationships.”

“For the Anishinaabe, the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances,” she explained.

Ontario appealed the Justice Hennessy’s Stage One and Stage Two decisions. However, Canada did not appeal.

“Recognizing the significance of the case, the Court of Appeal, which usually sits in panels of three, appointed a five-judge panel and heard arguments over eleven days,” the court’s release explained.

The court’s decision was divided into four sections. Section one was written by all five judges and provides the “factual background to the case and summarizes the court’s conclusions on the issues arising in the appeals.” The remaining sections are written by different judges and “provide the rationale and analysis for the judges’ conclusions on each issue.”

In its decision, released Nov. 5, the Court of Appeal identified 10 issues on appeal.

“First, on the issue of the standard of review for treaty interpretation,” Chief Justice George Strathy and Justice David Brown concluded that Justice Hennessy’s “interpretation of the Treaties is reviewable on a correctness standard” with Justice Peter Lauwers concurring. Justice C. William Hourigan, on the other hand, concluded 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.” Justice Gladys Pardu concurred with Justice Hourigan.

On the second issue, “the trial judge’s interpretation of the Treaties,” Justice Lauwers and Pardu held that Justice Hennessy “did not err in her interpretation of the Treaties’ augmentation clause” and Justice Hourigan concurred. “Conversely,” the court noted, Justices Strathy and Brown held that Justice Hennessy “committed errors of law in her interpretation of the Treaties, leading to an unreasonable interpretation.”

On the third issue, “the honour of the Crown,” the court unanimously agreed that “the doctrine is engaged in this case.” Justices Lauwers and Pardu, with Justice Hourigan in agreement, concluded that “the honour of the Crown obliges the Crown to increase the annuities as part of its duty to diligently implement the Treaties.” Justices Strathy and Brown determined 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.”

On the fourth issue, “the Crown’s discretion to augment the annuities,” Justices Lauwers and Pardu, with Justice Hourigan in agreement, concluded that “the Crown’s discretion to augment the annuities is justiciable and not unfettered.” Justices Strathy and Brown agreed that “the Crown’s discretion is justiciable and not unfettered.”

“Fifth, on the issue of fiduciary duties,” Justice Hourigan, writing for a unanimous court, held that Justice Hennessy “erred in finding that the Crown is under a fiduciary duty regarding the implementation of the augmentation clause in the Robinson Treaties.” The court agreed that “this finding should be set aside.”

On the sixth issues, “Crown immunity,” Justice Hourigan, again writing for a unanimous court, concluded 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.”

“Seventh, on the issue of limitations,” Justice Hourigan, writing for the court, held that “provincial limitations legislation does not preclude the breach of Treaty claims.”

“Eighth, on the issue of indexation,” Justices Lauwers and Pardu, writing for the court, concluded that Justice Hennessy “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.”

The ninth issue was costs and Justices Lauwers and Pardu, writing again for the court, concluded that “Ontario’s costs appeal from the Stage One proceedings should be allowed in part.” The court granted “leave to appeal from the award of $9,412,447.50 in favour of the Huron Plaintiffs;” upheld 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 the reasons of Lauwers and Pardu.” The court denied leave to appeal from “the costs award in favour of the Superior Plaintiffs in the sum of $5,148,894.45.”

The tenth issue was on remedies in the Stage One proceedings, and Justices Lauwers and Pardu, with Justice Hourigan in agreement, determined that Justice Hennesy “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,” the court noted.

The Stage One appeal was granted in part and the Stage Two appeal was “dismissed in its entirety.”

In their analysis Justices Lauwers and Pardu stressed that “[T]o be helpful, post-treaty evidence must be capable of shedding light on the intention or interests of one or more of the parties at the time the treaty was signed.”

“The extent to which a document does so will depend not only on its contents, but on its temporal proximity to treaty formation, its connection to treaty negotiations, and the context in which it was created,” they added.

Justice Lauwers and Pardu also noted that the “honour of the Crown ‘infuses’ the process of treaty interpretation, and is ‘an important anchor.’ ”

“Further,” they added, “ ‘[T]he Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).’ The honour of the Crown gives rise to justiciable duties.”

Justice Hourigan stressed that the “Crown’s submissions regarding the 1990 Limitations Act are without merit.”

“Limitation periods are supposed to provide certainty to litigants regarding their legal rights and liabilities. There is nothing in the 1990 Limitations Act that explicitly references treaty claims,” he added, noting that “[H]ad the legislature intended to target treaty claims, it would have been a straightforward task to do so, either through an explicit reference or the inclusion of a basket clause that caught all other causes of action not explicitly mentioned in the statute.”

Justice Hourigan also noted that the legislature “chose not to reference Aboriginal treaties in the 1990 Limitations Act, although it did so in the 2002 Limitations Act.”

“This is strongly suggestive of an intention not to impose a limitation period for claims based on a breach of an Aboriginal treaty,” he explained, noting that “Ontario’s arguments that the legislature intended to cover Aboriginal treaty claims under the terms ‘contract’, ‘specialty’, or ‘action of account’ are unpersuasive.”

Schachter told The Lawyer’s Daily that another takeaway is the Court of Appeal’s stance that “the honour of the Crown does the job of making sure a just outcome.”

“You don’t have to resort to fitting a square peg into round holes to try and establish a fiduciary duty in order to get the proper remedy. The honour of the Crown will ensure that the proper remedy is available,” he explained.

Schacter also highlighted that the decision notes “there is no limitation period in Ontario for breach of treaty claims anymore, if there was.”

“And that makes absolute good sense,” he stressed, noting that to him “the business of reconciliation requires these historic grievances on which our country was built” be addressed and that “can’t be achieved by sweeping it under the rug. They have to be addressed on their merits.”

Schacter said that reconciliation has “supercharged the honour of the Crown.”

He noted that the Court of Appeal “really emphasize that the intent of the Treaty was to provide for the First Nations collectively to enjoy the same opportunities that other Canadians have had.”

Schacter pointed to paragraph 322 of the decision, where the court stressed: “[B]ased on the trial judge’s reasoning, the common intention of the parties was to share in such a way that would provide for both communities. This would suggest that the ‘share’ promised is to be determined not only based on the extent of Crown revenues but also with reference to the relative wealth and needs of the different communities. Obviously, the Anishinaabe would not have expected their communities to suffer a range of deprivations, including substandard housing and boil water advisories, while non-Indigenous communities thrived. Nor was it likely, based on the Anishinaabe principles discussed by the trial judge, that the Anishinaabe would have wished to enjoy great personal wealth while their fellow Canadians suffered deprivation.”

Kaitlyn Lewis, Duboff Edwards Schachter Law Corporation

Kaitlyn Lewis, Duboff Edwards Schachter Law Corporation

Lewis said there were “a few pieces of advice imbedded within the court’s decision,” one of which was “really an encouragement by the court for issues of national importance,” such as the relationship between the Crown and Anishinaabe people in Canada and reconciliation, “require a just resolution and one that is best resolved with the parties sitting down at the negotiating table.”

Lewis said this “indicates a changing of the tides a little bit in Canada and a recognition of how important reconciliation is for all Canadians.”

“At the end of the day, I think this case is a good example of what the Anishinaabe people in this case have known all along, which is the treaty is a relationship document. It’s not a onetime transaction, it’s an on-going relationship that needs to continue to grow and isn’t frozen in time,” Lewis added.

Catherine Boies Parker, a partner at Arvay Finlay LLP in B.C. and counsel for the respondents on behalf of the Anishinaabe Nation who are beneficiaries of the Robinson Huron Treaty with David Nahwegahbow, Dianne Corbiere, Christopher Albinati, Daniel McCoy and Alexander Kirby, said “the most important thing about the decision is that it confirms what the trial judge did in the court below, which was to try to really give effect to the Indigenous perspective, the Anishinaabe perspective on this treaty.”

Catherine Boies Parker,  Arvay Finlay LLP

Catherine Boies Parker, Arvay Finlay LLP

“The Supreme Court of Canada has told us for a long time that section 35 rights have to be understood, taking into account both the common law and the Indigenous perspective. But I think that can sometimes be very difficult for courts to do and it’s important that counsel take responsibility for trying to help present the court with evidence from which they can understand the Indigenous perspective on rights, including treaty rights,” she explained.

She noted that there’s “an emphasis” in the decision, both in the court below and in the Court of Appeal, to “the weight that the trial judge gave to the Anishinaabe treaty principles, such as respect and responsibility and reciprocity and renewal.”

“It’s really important to do what you can to give effect to those perspectives because often in these cases you have an enormous amount of documentary evidence, historical evidence, but most of it is written from the perspective of the Crown. Even when they’re recording things that Indigenous people have said, it’s often through the lens of a non-Indigenous person,” she added.

Boies Parker also noted the decision “focuses on the honour of the Crown rather than relying on the fiduciary duty principles.”

“I think that that has a lot of potential to be very exciting. The court is suggesting that the honour of the Crown and the duty of diligent implementation of Treaties needs to be developed to really give effect to the Crown’s responsibility,” she explained, adding that the “honour of the Crown is a doctrine that has very long history,” but isn’t “exclusively attached to the Crown-Indigenous relationship.”

“So, that’s exciting to have the court recognize that that doctrine needs to be further developed,” she noted.

Ontario’s Ministry of the Attorney General spokesperson, Brian Gray, said “Ministry counsel are reviewing the decision.”

“As this matter is within an appeal period and remains before the courts, it would be inappropriate to comment further,” he added.

The Department of Justice directed comment to Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). Nicolas Moquin, a spokesperson for CIRNAC, said “in August 2021, the Government of Canada offered to enter into negotiations with the Robinson-Huron and Robinson-Superior First Nations and the Government of Ontario to try to resolve the Restoule/Whitesand litigation outside of the courts.”  

“We hope that the parties can work together in a spirit of reconciliation and partnership at the negotiation table to chart a new path forward based on our unique treaty relationship,” he added.

Moquin explained that “Canada did not appeal the Ontario Superior Court’s decisions in Stage 1 and Stage 2 of the ongoing Restoule/Whitesand litigation, but appeals were filed by the Government of Ontario with the Court of Appeal for Ontario.”

“We have now received the Court of Appeal for Ontario’s decisions on both appeals,” he added, noting that “Canada remains committed to resolving litigation outside of the courts. Negotiated agreements and outcomes are preferred wherever possible.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.