On July 26, 2024, the Supreme Court of Canada (“SCC”) delivered a landmark decision in Ontario (Attorney General) v Restoule, 2024 SCC 27, unanimously finding that the Crown had breached their treaty promises to the Anishinaabe of the upper Great Lakes under the 1850 Robinson-Superior and Robinson-Huron Treaties (“Robinson Treaties”). The Court stated that the Crown “dishonourably breached” the Robinson Treaties by failing to fulfill the Augmentation Clause and neglecting to exercise their discretion to increase the annuity payments under the Treaties..
How We Got Here
In 1850, the Anishinaabe of Lake Huron and Lake Superior both entered into treaty negotiations with the British Crown, resulting in the Robinson-Superior Treaty and the Robinson-Huron Treaty. The Anishinaabe of the upper Great Lakes form many First Nation communities who have lived and continue to live on the shores of Lake Huron and Lake Superior. The lands under the Treaty encompass over 100,000 square kilometres and include communities such as Thunder Bay, North Bay, Sault Ste. Marie, and Sudbury.
Both treaties were built on a close relationship between the British Crown and Indigenous signatories that existed before 1850, as evidenced by the Covenant Chain Alliance, the Royal Proclamation, and other historic events. By the mid-1800s, however, the Crown began unilaterally granting mining licenses on the Anishinaabe’s unceded traditional territories. In response, Anishinaabe leaders pushed for the treaty negotiations to ensure fair compensation for the use of their traditional lands, leading to the establishment of the Robinson Treaties.
Under the Robinson Treaties, the Indigenous signatories allowed the British to use their territories in exchange for an annual payment in perpetuity based on the revenue generated from the lands, among other provisions. Initially, the British Crown provided a lump-sum payment of £2,000 with a perpetual annuity of £500 under the Robinson-Superior Treaty and £600 under the Robinson-Huron Treaty. These provisions were accompanied by an Augmentation Clause, which imposed a duty on the Crown to increase the annuities for these nations, permitting that the Crown could do so without incurring loss.
Despite the Augmentation Clause, the annuity payments have remained frozen at $4 per person since 1875 – nearly 150 years.
The SCC rightly pointed out how many Anishinaabe members have suffered significant deprivations in their community while the Crown has reaped substantial economic benefits from their lands. The court even described the low annuity payment as a “mockery” of the Crown’s promise to the Anishinaabe people.
To the Anishinaabe, the treaties contained a sacred promise to share the wealth of the land based on the Indigenous principles of respect, responsibility, reciprocity and renewal. The failure to uphold this drove the Anishinaabe to pursue legal action against the Crown. After years of litigation, in their unanimous decision, the Court declared that the Crown “dishonourably breached the Robinson Treaties” by failing to fulfill the Augmentation Clause.
What This Case Means
The SCC’s ruling compels the Ontario and Federal governments to negotiate “fair and honourable compensation” to the beneficiaries of the Robinson Treaties from 1875 to the present. A $10-billion settlement has already been reached by the Robinson-Huron Treaty signatories in January 2024, with half paid by Ontario and the other half paid by Canada. However, the Robinson-Superior negotiations still remain.
This decision represents a landmark victory for the Anishinaabe of the upper Great Lakes. It not only addresses the historical injustices faced by these nations but also advances the efforts toward reconciliation between Indigenous communities and the Crown. This case highlights the importance of maintaining Treaty promises and the need for a more just approach to Treaty interpretation in Canada. It also sets an important precedent for future Treaty litigation as it emphasizes the important duty of the Crown to exercise its discretion “diligently, honourably, liberally, and justly” – principles that are essential to effectively uphold Indigenous rights.
*Jenna Brunt joined LAND for a Summer 2024 placement as our first summer law student. Jenna is in her third year of law school at the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay. Her placement was made possible thanks to the generous contribution by the Law Foundation of Ontario, who funds placements where students can gain legal experience in the fields of Indigenous and environmental law, and support access to justice issues. Jenna is passionate about pursuing a career in environmental law, with particular focus on advocating for the rights and interests of Indigenous communities. She continues to support LAND as a pro bono student.
Photo Credit: French River-Dokis First Nation, Julia Hambleton