Foundations of Canadian Law

Lecture 3 : Restoule v Canada

(AG) 2021 ONCA 779
Formation of a Treaty

● Robinson Treaties cover an area west of Thunder Bay. The Anishinaabe Chiefs wanted compensation for
mining activities by the Crown that encroached on their territory. The crown offered an annuity that was small
because of the unknown value of the land. The treaty was signed in 1850.

Treaty stated:
● An annuity would be paid and adjusted from time to time if there was not a net loss to the Crown from
resourced based activity (mining, logging, etc)
● In 1875 the individual annuity was increased from $1.70 to $4.00 per person of the beneficiaries of the
Anishinaabe people.
● Has been frozen for 150 years

Trial Judge decision

● The Augmentation clause was interpreted to be a promise to increase the annuity as long as the resource
based activity did not make a loss. This obligation of the Crown is a mandatory and reviewable one, but the
Crown retains discretion over how to implement the augmentation promise.
● Augmentation promise is a constitutionally recognized right under S 35(1) of the constitution Act 1982.

ONCA
● Although the majority and the minority of the court disagreed with the trial judge's reasoning the majority
agreed the trial judge did not make any reversible errors– agreed with the decision that the annuity needed
to be increased because it hadn't changed in a hundred and fifty years
● They disagreed on the trial judge’s interpretation of the augmentation clause.
● The majority highlight that the treaties are relationships that over time are governed by the principles of the
Anishinaabe.

Unanimous decision of the ON Court of Appeal

● Robinson Treaties are seen as revenue sharing agreements

● Crown must increase its annual payments to the Anishinaabe treaty partners
● Crown has neglected its treaty promises for too long
● The Crown is required to increase the annuities in a generous way consistent with the Honour of the Crown.
● The Crown has neglected its promise for over 150 and there is no limitation period for a claim for damages.

ONCA
● Stressed that the parties should negotiate the resolution for the outstanding issues between them.
● The court can compel the government to “address an injustice that brings dishonour to the Crown”.
● Court reaffirms the importance of the Anishinaabe principles of respect, reasonability, reciprocity and renewal
in terms of the treaty relationship which were written into the treaty.
● The Royal Proclamation of 1763 assured the Great Lakes Anishinaabe, their lands and autonomy would be
respected.
 ● Questions the standard of review for treaty interpretations
○ When you look at the difference between the Court of Appeal analysis of what the treaty means and
what the words in the treaty means and what the trial judge did.
○ So there was a split in the Court of Appeal– minority talking about the augmentation amount being a
soft cap on what should be increased.
○ Different judges took different approaches in the Court of Appeal decision on how they interpreted
the treaty itself.
○ Quite important when you're dealing with a greater number of indigenous people asserting their
rights through Section 35
Final Thoughts
● Questions the standard of review for treaty interpretations: should this go to the SCC?
● Sec tions 35 claims require a lot of time and money to succeed (have to have NGOs behind you a lot of
people behind you)