Canada and Ontario Breached Duty to Diligently Implement Treaty Promises

?? Jessica Buhler , Rangi Jeerakathil , Meaghan Conroy , Josh Morrison , Sonia Eggerman , Erica Klassen

The Supreme Court of Canada ruled that Canada and Ontario dishonourably breached Treaty promises to the First Nation signatories to the Robinson Treaties of 1850.

The Anishinaabe of the upper Great Lakes brought claims against Canada and Ontario to address those governments’ longstanding failure to increase the annuities payments under the Robinson Treaties. The Robinson Treaties contain an “Augmentation Clause” which required the Crown to increase or decrease the annuities payments over time as the resource revenues from the land increased or decreased, subject to two conditions:

(1) The annuities would only be increased if the Crown could do so without incurring a loss.

(2) The total annuity would not exceed $4 dollars a year per person or “such further sum as Her Majesty may be graciously pleased to order.”

The annuity was increased only once, in 1875, to $4 per person. The Supreme Court of Canada stated that capping the annuity payment at $4 per person could “only be described as a mockery of the Crown’s treaty promise.” The Court confirmed that that the Crown has a duty to diligently fulfill promises in Treaty and that for close to 150 years that duty has been breached.

The Court also concluded that the First Nations’ claims were not barred by Ontario’s Limitations Act.

Some of the plaintiffs settled their claims with Canada and Ontario before the Supreme Court of Canada’s decision while others had not. The Court directed Canada and Ontario to negotiate meaningfully and honourably with the remaining plaintiffs to determine a fair amount of compensation. If the parties cannot reach a settlement within six months of the Court’s decision then Canada and Ontario must exercise their discretion to determine the compensation amount, which will be subject to review by the Courts.

The Supreme Court of Canada’s decision deals with issues regarding the application of Treaty interpretation principles to specific Treaty promises, the application of provincial limitation periods to claims for breach of Treaty, and the Crown’s obligation to diligently implement Treaty promises.

MLT Aikins will publish additional blogs with a more detailed analysis of those issues in the coming days. Please contact a member of our Indigenous practice group if you would like to discuss the impacts of the decision on you and your organization.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.