The Supreme Court of Canada (SCC) recently weighed in on Ontario (Attorney General) v. Restoule, 2024 (Restoule), which changes the legal landscape for Treaty nations across the country. 

Not only did the SCC uphold that the Crown must increase annual payments to Anishinaabe communities under the Robinson-Superior Treaty and the Robinson-Huron Treaty (Robinson Treaties), but proper remedy for over 150 years of injustice cannot be achieved through a simple declaration. The Crown must now negotiate and come to a settlement within six months with the Robinson Superior plaintiffs to increase annuity payments that reflect this past injustice, enacting reconciliation and fulfilling the Honour of the Crown in the process (The Crown has already come to a negotiated settlement with the Huron plaintiffs!).

With RAVEN’s support, West Moberly First Nations (WMFN) intervened in the case to provide their unique perspective on numbered Treaties for the SCC to consider when it made its decision on the standard of review. Although the SCC did not accept the arguments of WMFN in how to decide the issue of standard of review, we applaud WMFN for sharing their perspectives on standard of review and Indigenous legal orders in Treaty interpretation.

The Case

The Robinson Treaties were signed nearly 175 years ago. Among other obligations, the Treaties required Ontario to make annual payments in exchange for the land, and that the provincial government should increase the annual payments if it wouldn’t incur a loss of profit if they increased the payment. 

The government of Canada increased the annuity to $4 in 1875, and it hasn’t changed since. As Campaigns Director Leslie Anne St. Amour said in a previous blog about the case — “Anyone who has been to the grocery store even in the last year will tell you that $4 ain’t what it used to be.” 

Mike Restoule and other representatives of the Anishinaabe Nation who are beneficiaries to the Robinson Treaties filed a case against Ontario for not increasing annuity payments when they have raked in enormous profits from the land exchanged in the Robinson Treaties. The trial and appellate courts ruled that Ontario needed to increase annuity payments. 

You would think that Ontario would accept the decision to increase annuity payments at two levels of court, but no. In efforts to continue avoiding payments, the Robinson Superior and Huron plaintiffs (making them pay expensive legal fees in the process), they appealed to the SCC. 

The SCC ruled for Ontario to pay up, but not based on a figure decided by themselves. The court recognized in their ruling that they could have stepped too far beyond their role of adjudicator by putting a dollar sign on the past and ongoing injustice. Ontario would be excused from meaningfully engaging and negotiating with the Anishinaabe Nation over how much the province should be paid each year, and for the past amounts they should have given to the beneficiaries under the Robinson Treaties. This gives the Nation more power to decide what is best for them, instead of a colonial-based court, who has enforced oppressive policies on Indigenous Peoples in the past.

This shift in the SCC’s approach is a sign the times are changing. Although the Canadian legal system is a very long way away from becoming an actual justice system for Indigenous Peoples (if it’s even possible), there are new legal remedies emerging from the courts to better respect Indigenous Nations and their right to self-determination. It’s no doubt that other Treaty Nations can use this case as leverage to receive proper annuity payments agreed upon in their Treaties with the Crown, which is already being considered by N.W.T. Indigenous governments closely following the negotiations.

The Standard of Review

The SCC clarified the standard of review, which is the process of how appeal courts review a lower court or a tribunal’s decision. Currently, lower courts make decisions around Treaty interpretation by making findings of fact based on the extensive evidence of both sides of a case and applying those facts to the law. 

When a lower court decision on Treaty interpretation is appealed, the appeal court can decide whether or not the trial judge’s interpretation is correct of law. The decision is either right or wrong, according to the law. They are not required to defer to the trial judge. This standard of review is called “correctness.”

West Moberly First Nation and other intervenors sought to argue that the appropriate standard of review is “reasonableness.” This would require appellate courts to be more deferential to decisions of the lower court, because the lower court had heard all of the substantial amount of evidence and possibilities of a Treaty interpretation. 

The SCC ruled that the “correctness” standard of review applies instead of “reasonableness” that WMFN argued for. The court’s reasonings are due to a variety of technical legal reasons, but essentially the constitutional nature of Treaty rights requires the appellate level of court to have a broad scope to intervene on Treaty interpretation instead of a narrow scope, which is seen more with a standard of review under “reasonableness”. 

Historical Treaty Interpretation

WMFN also intervened to provide their unique perspective on Treaty interpretation. The Nation argued that Indigenous legal orders for Historical Treaty-making should be considered because Indigenous Nations who entered into Treaties had separate and different legal orders from one another, so they may have different views of what a Treaty is to their specific Nation.

This added complexity of Historical Treaty-making was not something that the SCC weighed in on. There are established principles that guide the ways in which courts interpret Historical Treaties (which you can read more about in Leslie Anne’s blog) that they cited, but decided not to contribute to in the way that WMFN wanted. 

Conclusion

Legal principles, such as the recognition of Indigenous legal orders in Historical Treaty-making, are like doors. They begin closed and slowly open as parties keep bringing up such principles through legal cases.

At RAVEN, we see doors opening all the time. Wet’suwet’en’s legal challenge opened the door for s.7 rights under the Canadian Charter of Rights and Freedoms to pursue climate action for Indigenous Peoples, which follows after 30 years of climate litigation being turned down. Heiltsuk Nation has continually creaked open the door for Aboriginal title to the foreshore and seabed, which would legally recognize Indigenous sovereignty to oceans, lakes, and rivers; title in this way was previously inconceivable, but now courts are saying it’s possible.

WMFN’s intervention in Restoule is no different. Although the doors for the issues they raised remain closed, the Nation’s arguments were heard and considered. The law is a living, evolving entity that changes over time. Other future cases will build off of Restoule, as one piece in the ever-evolving jurisprudence.