Interpreting the Crown's promise

Watershed moments in law aren’t always recognized for what they are while they’re still happening. In Ontario, a dispute over a unique pair of First Nations treaties going on for more than 150 years (give or take a decade) is about to land in front of the Supreme Court.

What the SCC does with Ontario’s appeal this month could have a profound effect on the courts’ approach to treaties going forward and on the reconciliation project writ large. And yet, media coverage of the “Robinson treaties” case has been slight; most Canadians don’t know what’s happening or why it matters.

“No other treaties in this country are written the same way these treaties are,” says Spencer Bass of Stockwoods. He’s representing Biigtigong Nishnaabeg First Nation as an intervener in Ontario’s appeal before the SCC.

“However, the way the SCC rules on this appeal will have a large effect on how all other treaties are interpreted in the future.”

The Robinson-Superior and Robinson-Huron Treaties cover a section of northern Ontario that includes Thunder Bay and Sault Ste. Marie. Under their terms, the Anishinaabe of the upper Great Lakes surrendered certain resource rights (mining, logging) to the Crown in exchange for annual payments, or annuities.

The oddity in the treaties is an “augmentation clause” which provided for increases in the annuity payments if and when the territory ceded by the Anishinaabe produced enough revenue to (according to the wording of the clause) enable “the Government of this Province, without incurring loss, to increase the annuity hereby secured to them.” The augmentation clause also stated “the amount paid to each individual shall not exceed the sum of one pound” — $4 per person.

That the territory covered by the Robinson treaties has exceeded the value cited as the benchmark in the augmentation clause is beyond dispute. Resource industries in the region have generated hundreds of billions of dollars. Sault Ste. Marie alone had a population of 73,368 in 2016.

At issue are Ontario’s responsibilities under the treaties. Is the augmentation clause a formula for boosting the annuities on a regular basis? Or is it, as Ontario has argued, merely a requirement that the Crown consider increasing annuities from time to time — a suggestion, not a rule?

The annuities were increased only once, in 1875, to the $4 per person cap. The chiefs began petitioning the Crown for arrears in 1877; payment of arrears didn’t start until 1903.

Starting in 2001, groups representing the treaty beneficiaries pursued an action against the provincial and federal governments. They brought more than 30,000 pages of evidence with them — possibly “the most comprehensive collection of historic and cultural material ever amassed” on the treaties and Anishinaabe history, Ontario Superior Court Justice Patricia Hennessy wrote in her ruling.

Those 30,000 pages helped Hennessy dive deep into the historical context of the treaties. The court’s “common intention analysis” — its attempt to explain not only the wording of the treaties but the history informing them and the goals sought by both the Crown and the Anishinaabe in negotiating them — led it to engage directly with Anishinaabe legal concepts. Those include the link between exchanges of “gifts” and the creation of a relationship of mutual obligation.

“The trial judge’s approach to Anishinaabe traditions was certainly unique and new, even if it wasn’t used to actually settle any of the legal questions,” says Tenille Brown, an assistant professor of law at Lakehead University.

“The starting point of interpreting a treaty has to be the attempt to understand the goals and intentions of the parties — that’s just basic Section 35 [of the Constitution Act],” which affirms existing Aboriginal and treaty rights.

Ontario doesn’t see it that way. It argues that the “context” is the text — that the best way to interpret the intentions of the parties is to parse the wording of the treaties themselves. And Ontario’s reading of the treaties concludes that it has unrestricted discretion to increase the annuities by a little, or a lot, or not at all.

“Ontario isn’t saying that interpretation doesn’t matter — clearly it does. They’re saying that you get at the interpretation through the text, that the text is primary,” says Aria Laskin, who practises Aboriginal, environmental and constitutional law at JFK Law.

“Ontario’s argument is that the Crown, represented by Ontario, has an obligation to address the level of the annuity from time to time. To look at it, you understand — not necessarily to do something about it. The parties are entitled to an honourable process, not necessarily a particular outcome, and that process is the purview of the Crown and not the court — that’s their argument.”

Justice Hennessy ruled that the augmentation clause obligated the Crown to increase the collective annuity while respecting the treaties’ $4 per capita ceiling on individual payments. She rejected Ontario’s arguments on the statute of limitations and Crown immunity. In 2021, the Court of Appeal tossed out most of Ontario’s arguments, leading to Ontario’s appeal to the Supreme Court.

Observers on all sides will be watching the SCC closely on this one. Tom Flanagan, professor emeritus of political science at the University of Calgary, argued in 2021 that the case “exemplifies Canadian courts’ current activist approach to treaty interpretation” and warned that it could put at risk future resource projects in treaty territory, such as the Ring of Fire in Ontario.

But worries about development roadblocks can’t be allowed to override the courts’ duty to interpret treaties fairly, says Brown.

“The implications of a treaty entered into in good faith in 1850 need to lie where they lie,” she says. “If that’s what the parties intended, that’s what they intended. And if that points to more resource partnerships between the Crown and First Nations in the future, I think that’s an exciting prospect.”

Brown says it was “smart” of Ontario to couch its arguments in terms of the separation of powers between courts and governments. “It’s true that the courts have tended to be very sympathetic to separation-of-powers arguments — that public policy is not within the purview of the courts,” she says.

“But the Court of Appeal didn’t wade into policy. In its decision, it didn’t say the annuity had to be increased by any specific amount. It simply says that it must be done.”

Because the augmentation clause is unique to the Robinson treaties, the SCC decision probably won’t have a direct effect on much future treaty jurisprudence. It could have a powerful indirect effect, says Bass, if the high court decides it can’t order a specific remedy in the case.

A ruling in Ontario’s favour could have another, broader impact. The “honour of the Crown” is a foundational principle of Aboriginal law that calls on governments “to treat Aboriginal peoples fairly and honourably, and to protect them from exploitation” (Mitchell v. M.N.R.).

“The honour of the Crown implies that promises made have to be interpreted in a broad way, not a narrow one,” says Laskin. “This case is also going to have an effect on the confidence Indigenous people feel in the justice system.”

A win for Ontario could also convince judges that they don’t have to make an effort to understand treaties in context, says Bass.

“The trial judge in this case really put in the work and gave equal time to both sides in the original treaty negotiations, the idea being to determine what both sides thought they were getting in 1850,” he says.

“If Ontario gets its way by basically arguing, ‘Pay attention only to the English words of the treaty, because that’s all that matters,’ it devalues that effort to bring an Indigenous perspective into the process. Future judges will just assume they don’t have to understand the full context surrounding treaties, and reconciliation will suffer as a result.”