Tom Flanagan is professor emeritus of political science at the University of Calgary and a senior fellow of the Fraser Institute.
In September 1850, Canada signed the two Robinson Treaties, covering more than 130,000 square kilometres north of Lakes Superior and Huron. These treaties are now the subject of a lawsuit, known as the Restoule case, after the lead plaintiff Mike Restoule. The litigation may have momentous implications for Ontario, and indeed all of Canada.
Because the land was ill-suited for agriculture, the government considered it less valuable than Southern Ontario. Hence Canada was willing to pay annuities of only $1.60 or $1.70 a head, compared to the $10.00 a year that had been common further south. Yet it was understood that the land might become more valuable in the future because of natural resources. Hence the Robinson treaties contained a unique feature, now known as the “augmentation clause,” providing for a possible increase in annuities up to 1 pound ($4) if resource revenue from the land grew, “as Her Majesty may be graciously pleased to order.”
Annuities were increased to $4 a year in 1875 but have remained constant ever since. In Restoule, the Robinson treaty nations now argue that, because of growing resource revenues, the Crown had an obligation to increase annuities above $4 a year, and the missing annuities should now be repaid with interest.
When Restoule was before the Ontario Superior Court of Justice, Justice Patricia Hennessy produced a new reading of the augmentation clause. She determined that the words “as Her Majesty may be graciously pleased to order” did not mean executive discretion but an obligation reviewable by the courts. She also found that there were two different annuities, even though the treaties mention only one: a collective annuity to be paid to the tribes, plus individual annuities payable to members, and the $4 limit applied only to the individual annuities. She also found that the treaties created an Indigenous right to a “fair share” of resource revenue.
The Ontario Court of Appeal, in its decision released on November 5, reined in Justice Hennessy’s interpretation to a degree. It nullified her “fair share” doctrine as well as her dictum that Canada and Ontario would not be able to count the cost of building infrastructure and institutions (roads, housing, medical care, education etc.) in calculating compensation for the missing annuities. But the essence of the decision still stands: Canada and Ontario had an enforceable obligation to consult with the First Nations about increasing the annuities after 1875.
In a narrow sense, Restoule will have no further effects beyond this one dispute, because no other Canadian treaty has an augmentation clause. However, the case will be influential on future litigation because it exemplifies Canadian courts’ current activist approach to treaty interpretation, giving rise to readings which, even if not directly contrary to the treaty text, can certainly yield unexpected results, such as interpreting executive discretion as a justiciable obligation.
Ontario Premier Doug Ford recently announced his determination to carry through with the Ring of Fire mining project in the Treaty 9 region, which lies north of the Robinson treaty areas. This is supposed to be the key not only to a mining boom but to the manufacture of electric vehicles in Ontario, which will require the rare metals found in northern Ontario. It is a major piece of the government’s “Driving Prosperity” strategy in support of the automobile industry. “We’re doing it,” Premier Ford said, taking pains to sound decisive.
The Premier is obviously relying on the wording of Treaty 9, signed in 1905, according to which the First Nations “cede, release, surrender and yield up to the government of the Dominion of Canada, for His Majesty the King and His successors for ever, all their rights titles and privileges whatsoever, to the lands.”
However, three First Nations – Neskantaga, Attawapiskat and Fort Albany – have already declared a moratorium on developing the Ring of Fire. A lawyer for the Attawapiskat says the land “has always been and still is solely” the property of the First Nations, thus contradicting the wording of Treaty 9. Opponents of the Ring of Fire will mount an argument that the real treaty is something different from the wording of the treaty text. If the courts respond to that argument as they did in Restoule, Ontarians will go on buying batteries manufactured in China from rare metals mined in that country, rather than from an Ontario mining and manufacturing industry, and “Driving Prosperity” will be headed for the ditch.
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