Along with personal comment on the same
To the Expositor:
(“Who dares not offend, cannot be honest”)
There was a lot in your September 13 issue of The Expositor about the Restoule treaties case, but little that explained to your readers what the issues are. I offer this explanation and some personal comment here.
Ontario is still fighting this case on all issues. The case is to be argued before the Supreme Court of Canada this November 7 and 8.
It is inexplicable that, at the same time as they are fighting it, Ontario is joining with Canada in offering $10 billion to the Robinson Huron treaty parties, seemingly as a down payment on damages. I guess Ontario expects to lose!
The main issue in this still ongoing case is whether the 19th century treaties that Great Britain and Canada entered into with Canada’s Indigenous peoples were land surrender agreements or land sharing agreements.
At trial the Restoule bands argued successfully that prior to and even after the making of the treaties they were and they remain autonomous, self-governing “nations,” each with their own “legal order,” “governance practices” and “jurisdiction” over their “exclusive territory,” which they “shared” with-—not surrendered to-—the Crown. They argued successfully that the treaties their forefathers made with the Crown give rise to permanent “nation to nation treaty relationships.”
They argued successfully that the true meaning of the treaties their ancestors signed with the Crown in 1850 was different than what the treaties said on their face and what their predecessors’ acquiescent and protest-free conduct had demonstrated.
They argued successfully that instead of the treaties having been land surrender agreements entered into by numerically tiny, clan-based, hunting and fishing bands, they were in fact land sharing agreements entered into by sovereign, independent “nations” with the nation of Upper Canada/Great Britain, and that, instead of just being entitled to $4.00 per band member per year, the treaties, properly interpreted, entitled each band to an additional periodic, collective lump sum payment representing its purported “fair share” of the ongoing value of and revenues from the lands surrendered.
In essence they argued, successfully at trial, that the true meaning and interpretation of the treaties was that they were equal “partners in progress” with the Crown, and that for this entire approximately 150-year period the Crown had wrongfully neglected to pay them their “fair share” of the “partnership” profits.
This is the main issue which will be argued at the Supreme Court of Canada.
The trial judge ruled that the treaties were not one-time agreements. Rather, she said they were “future-oriented agreements within an ongoing relationship,” which created a “reciprocal relationship between independent entities” involving “shared spaces and resources.” She ruled that when the Indian bands signed the treaties, given their unique “Anishinaabe perspective and worldview” they had a “cultural expectation of equal reciprocity,” despite there being no outward indication or talk about this during the treaty deliberations and no wording in the treaties saying this.
Ontario appealed this decision to the Ontario Court of Appeal. Ottawa did not, thereby abandoning to the judicial winds its sovereignty interests and the legitimate interests of the Canadian taxpayer, following what the writer calls Trudeau’s Crown Sovereignty Surrender Directive.
Again, in the upcoming hearing before the Supreme Court of Canada, Ottawa is supporting the position of the Restoule respondents—these “independent nations.”
The majority in the Court of Appeal, unable to find that the trial judge made any palpable and overriding errors in her findings of fact, allowed her “sharing” interpretation to stand.
The two-judge minority, however, on this central, treaty interpretation issue, said that the trial judge ignored the plain meaning of the treaty wording in her ruling, and wrongly discounted and ignored cogent evidence that made it clear that the common intention of the parties when they made the treaties, as demonstrated by the conduct of all treaty parties for 150 years after, was that it only called for one annuity of $4 per year per band member.
Ontario argues in its Supreme Court Factum (a written summary of its legal positions on all the issues), that the interpretation of the treaties by the two-person minority in the Court of Appeal is the correct one. Ontario argues that there was no collective annuity ever payable- and no sharing obligation ever owing in addition to the individual $4 per year per band member annuity, which again, makes their participation in this $10 billion payment to the Robinson Huron bands inexplicable.
A second issue to be argued is whether the Crown is liable in money damages for treaty breaches. Ontario argues that it cannot be. Rather it argues that courts only have jurisdiction to declare that a treaty was breached, leaving it up to the Crown to decide, applying the “honour of the Crown” doctrine, what, if anything, to do about it.
The Restoule bands argue that the courts do have jurisdiction to order that money damages be paid by the Crown for treaty breaches.
A third issue to be argued arises in relation to Ontario’s Limitations Act, which states in effect that a legal action to recover monies owing must be commenced within six years of the arise of the cause of action i.e., the failure to pay the monies properly owing. Failure to commence the action within that six-year period means that the right to pursue legal action in the courts to recover the wrongly withheld monies is statute barred.
Ontario argues that the Restoule bands’ lawsuits were started about 150 years too late, and thus their claims for yet-to-be quantified money damages awarded by the trial judge are statute barred.
The Restoule bands argue that the Limitations Act, because of the ‘honour of the Crown” doctrine, does not apply to First Nations lawsuits.
In their appeal documents, the Restoule bands argue that Canada and/or Ontario have been “historically dishonorable treaty partners.”
In my opinion this is unjustified.
The forefathers of present day non-Indigenous Canadians were by and large honourable people, and, having regard to the brutal norms of history, they were, vis a vis Indigenous peoples, de facto conquerors with a conscience.
Canadian taxpayers provide to Indigenous Canadians free medical care, free dental care, massive grants for reserve operations and infrastructure, funding for schools, grants for post-secondary education, special business start-up loans and loan guarantees, housing assistance grants and loan guarantees, programs for Indigenous youth and women, employment initiatives, funds for Indigenous land claims lawsuits, it funds for the bulk of their “consult and accommodate expenses,” funds for the various associations and federations (like the Assembly of First Nations) that make up such a large and vocal part of Indigenous lobbying, funding urban Friendship Centers, and funding money-losing movies and television programs focusing on Indigenous Canadians.
In addition, with their new “consult and accommodate” de facto veto power granted to First Nations bands by the Supreme Court of Canada, such bands in Canada are now able to demand and extract “impact benefit agreements” from any nearby resource project proponent as the price of securing their non-interference, consent and cooperation. These agreements are worth millions of dollars to these bands. The cost of these projects has to rise accordingly, which costs are eventually passed on to and paid by all Canadians.
Professor Emeritus Tom Flanagan of the University of Calgary writes that the current federal government has increased spending on Indigenous peoples from $11 billion in 2016 to $29 billion for 2023, an increase of about $18 billion, representing a percentage growth of 156 percent. This increase in Indigenous spending, almost none of which is called for by any treaty, is over twice as fast as the increase in overall federal spending since 2015.
The federal government, through its new UNDRIP Action Plan and related legislation, proposes to “Indigenize” as much as federally-controlled Canada as it can, which will entail even more borrowing for and spending on Indigenous peoples by the Canadian taxpayer.
Thus, Canadians have always acted more than honourably towards Canada’s Indigenous peoples.
It does not appear anywhere in this situation that non-Indigenous Canadians are getting any acknowledgment or credit for these billions of dollars of benefits and programs provided by them to Indigenous peoples, which are not required by any treaty to be paid or provided. This does not seem fair.
If Ontario loses this appeal, then the floodgates will be opened, and every First Nations band whose ancestors signed a treaty with the Crown will be suing to have their treaty re-opened on the same “Indigenous perspective and worldview” and “sharing” basis and will be claiming billions of dollars of retroactive damages from the Canadian taxpayer, as the Restoule bands are claiming. Some Prairie First Nation Bands are actively preparing such a copycat lawsuit, their leaders claiming that they want only “to share the land and resources as promised in the treaties.” A similar lawsuit is being promised by Ontario’s Treaty 9 bands.
More fundamentally, if Ontario loses this appeal, the sovereignty of the federal and provincial Crowns will be weakened even more than it has already been dangerously weakened by previous Supreme Court decisions and the federal government’s improvident adoption of UNDRIP. Our country will then arguably have three founts of constitutional sovereignty: the federal government, the provinces and thirdly, “Indigenous peoples.” This will add to the legal chaos and economic uncertainty already besetting our country in this profoundly important area of our national life.
Nelson Mandela wrote in his biography, ‘Long Walk to Freedom,’ that the very first step on the road to reconciliation is the complete dismantling of apartheid.
In Canada Samuel de Champlain’s dream was that “our French young will marry your Indigenous daughters and henceforth we shall be one people.”
Former Manitoba Minister of Northern Affairs, Jerrie Storie, wisely wrote:
“We governments and First Nations are captives of our past. We are indeed all treaty people, and it is time to revisit our treaties. Tying our collective futures to communities with no chance of jobs and opportunity is unfair to not only this generation of young people, but also future generations. The social dysfunction in First Nation communities cannot be fundamentally changed with money. People need jobs and hope. Our political leaders, both First Nations and at all levels of government, need the courage to rethink our treaty relationship for the good of First Nations youth.”
Over the past 25 years the Supreme Court of Canada, in their Indigenous law rulings, has relentlessly frustrated Nelson Mandela’s, Champlain’s and Jerrie Storie’s enlightened, universalist, “one people” dreams and aspirations, and let down the causes of Canadian racial unity and equality under the law.
In my opinion the Court owes the very many Canadians who embrace these universalist dreams and aspirations a ruling that will signal its intention to do more in its future rulings to bind Canadians together instead of splitting us apart- a ruling that will finally give Canadians some small hope that Nelson Mandela’s, Samuel de Champlain’s and Jerrie Storie’s goal and vision of one law for all races in the country might not be beyond the realm of reason and possibility after all.
Allowing Ontario’s important and meritorious appeal in the Restoule case would be such a ruling.
Peter Best
Retired lawyer
and Espanola native
