Supreme Court Upholds Treaty Promises in Restoule Appeal; Recognizes Crown Discretion in Treaty Implementation with Judicial Oversight
Treaty One Territory, Manitoba –The Assembly of Manitoba Chiefs (AMC) issues this response to the Supreme Court of Canada’s unanimous decision in the Restoule appeal, released on July 26, 2024.
This case concerns the Crown’s interpretation of sacred Treaty promises to the Anishinaabe of the Upper Great Lakes region. In 1850, the parties entered into the Robinson Huron and Robinson Superior Treaties. As part of the Treaties, the Crown promised annual payments to the Anishinaabe. These payments, known as annuities, were to correspond with profits from resource development.
In 1875, the annuities increased to $4/person. This amount has not subsequently increased, despite billions in profits from natural resources extracted from the Treaty territories. In 2015, the Anishinaabe initiated legal action against Canada and Ontario for breaching the annuity provisions of the Treaties.
Recognizing the importance of this case and its profound implications for First Nations in Manitoba and across Canada more broadly, the AMC participated as an intervener. The AMC’s submissions to the Supreme Court focused on the interpretation of Treaty promises in a manner that reflects the Nation-to-Nation relationship between Treaty partners while acknowledging the Crown’s post-Treaty conduct and unilateral shift from Treaty partner to authoritarian. The AMC emphasized the unique and sacred nature of Treaties, as solemn exchanges of promises entered into to create mutually beneficial relationships. The AMC asked the Court to ensure that the Canadian judicial system can substantively enforce the Crown’s Treaty obligations and asserted that doing so would advance reconciliation by holding the Crown accountable for its promises and moving away from the Crown’s history of bad faith, authoritarian actions.
In today’s decision, the Supreme Court confirmed that the honour of the Crown must guide the execution and interpretation of the annuity clause and the remedy for any breaches. The Crown has a duty to diligently implement and fulfill Treaty promises—failure to do so is a breach of Treaty and breaches of Treaty must be enforceable.
The Court stated that the Crown “has shown itself to be a patently unreliable and untrustworthy Treaty partner in relation to the augmentation promise” and that it “has lost the moral authority to simply say “trust us”. Importantly, the Court went further than merely recognizing these breaches by making “a declaration clarifying the rights and obligations of the parties”. The Court recognized that declaration of a breach alone was insufficient “given the longstanding and egregious nature of the Crown’s breach…. for almost a century and a half”.
As a result, the Court directed the Crown to negotiate compensation with the Anishinaabe within six months of the decision. If a negotiated outcome fails to materialize by this time, the Court recognizes the Crown’s authority to “exercise its discretion under the Augmentation Clause” and set a compensation amount. However, this amount set by the Crown and the process the Crown used to reach it would be subject to review by the courts. The Court further confirmed that “the full range of remedies – declaratory and coercive” were available.
The ruling is a vital step towards reconciliation and serves as a powerful reminder to the Crown that its unfulfilled promises will not go unaddressed. The Crown cannot continue to act dishonourably and with unfettered discretion in determining how Treaties are to be implemented. The decision makes clear that courts will play an important role where the Crown fails to act honourably in exercising its discretion. Jamal J. provided important direction to courts; if the Crown fails to honourably fulfil a financial obligation from a Treaty, a court may need to intervene and make its own determination instead of simply referring the matter back to the Crown for redetermination.
The AMC does, however, have concerns with how courts will scrutinize the Crown’s discretion. In the decision, the Court recognized “the Crown will have to engage in complex polycentric decision making that wights the solemnity of its obligations to the Anishinaabe and the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike” and indicated this is well within the expertise of the executive branch and requires judicial forbearance. This approach raises the concern that First Nations interests could be marginalized if courts defer too heavily to the executive’s discretion, potentially allowing them to be outweighed by broader governmental priorities.
Grand Chief Cathy Merrick welcomes the Supreme Court’s decision, “This is a moment of vindication for the Anishinaabe peoples and all First Nations who have entered into Treaties with the Crown. It underscores the importance of honouring historical Treaties and the obligations they impose. I call on the Crown and courts to meaningfully implement Treaty promises without providing undue deference to the Crown given its long and sordid history as a dishonourable Treaty partner.”
The AMC congratulates the Anishinaabe on their efforts to preserve the integrity of sacred Treaties, which are foundational to Canada’s existence. The AMC looks forward to building on the momentum of this decision to advance reconciliation and work towards fulsome implementation of Treaty rights for First Nations in Manitoba.
For more information, please contact:
Communications Team
Assembly of Manitoba Chiefs
Email: media@manitobachiefs.com
NT4


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