Restoule v. Canada (AG), Stage One: Lessons in Treaty Interpretation and More

Nancy Kleer Olthuis, Kleer, Townshend LLP For Colloquium 2020

October 23, 2020 YOUR HOMEWORK Indigenous Legal Issues – Robinson Treaties

. For all lawyers practicing in the territories, though not dealing with the augmentation clause: Read, at least, Parts I-VIII! Restoule v. Canada (Attorney General), 2018 ONSC 7701 . Factual review of the history of the Anishnaabe and Crown relationship: » 1700-1850 » 1763-1849 » Vidal Anderson Commission of 1849 » Mica Bay Incident » Treaty Council of 1850 » Post–treaty historical record . Principles of Treaty Interpretation

Your sovereignty. Your prosperity. Our mission. 2 WHY DO YOUR HOMEWORK? Indigenous Legal Issues – Robinson Treaties

. These 2 historic treaties establish constitutionally protected . These rights are an integral part of the law governing these treaty territories where lawyers practice, as much as the Canadian Charter of Rights and Freedoms, statutes, regulations, by-laws, municipal land use plans, etc. and the common law. . Lawyers for resource developers, their contractors, federal, provincial and municipal governments operating in these territories, as well as lawyers for these , need to understand the perspectives of both the Crown and the Anishnaabe about these treaties and this case provides an excellent overview of that. . These perspectives and the history preceding these treaties also inform the interpretation of other RH and RS treaty rights protected by s. 35 of the Constitution Act, 1982

Your sovereignty. Your prosperity. Our mission. 3 The Interpretive Task Indigenous Legal Issues – Robinson Treaties

. Robinson treaties included a perpetual annuity, to be augmented/increased subject to conditions . “The said William Benjamin Robinson, on behalf of Her Majesty, who desires to deal liberally and justly with all Her subjects, further promises and agrees that in case the territory hereby ceded by the parties of the second part shall at any future period produce an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order” . No increases in the annuities since 1875: $4/person . Q: What does the annuity augmentation clause mean?

Your sovereignty. Your prosperity. Our mission. 4 The Interpretive Task (specific) Indigenous Legal Issues – Robinson Treaties

• Purposive interpretation: How does the augmentation clause bridge the gap between Parties’ expectations? (para 338) • Purposive approach to interpretation is a duty flowing from the honour of the Crown (para 339)

Crown expectation: Anishinaabe expectation: • Cession of vast territory in • Full respect for their pre-existing northern Ontario, with sovereignty over the territory mineral and lumbering • Compensation that reflected the resources value of the land. • Limiting their current financial liability to a compensation amount that would have been unacceptable to the Anishinaabe.

Your sovereignty. Your prosperity. Our mission. 5 What is the interpretation? Indigenous Legal Issues – Robinson Treaties

. “Crown has a mandatory [not discretionary] and reviewable obligation to increase the [collective] Treaties’ annuities when the economic circumstances warrant.” . No cap on annuities, and the $4/person cap applies only to the distribution to individuals; individual distributions are a portion of the collective annuity payable to the First Nations (para. 397)

. Q. When is the increase triggered? A : “if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss”

. Q. What do the honour of the Crown and fiduciary duty doctrines have to do with this treaty obligation? A : Crown must “diligently implement the Treaties’ promise of reflecting the value of the territories in the annuities and other related justiciable duties” (Fiduciary duty: Crown must engage in a process to determine if the economic circumstances warrant an increase to the annuities )

. Q. What about Crown discretion in the process of implementing this obligation?

A1: Crown has discretion at various steps in the implementation A2. Honourable exercise of discretion is required “with a view to fulfilling the Treaties’ promise” A3. The discretion is subject to review

Your sovereignty. Your prosperity. Our mission. 6 Common Intention Test Indigenous Legal Issues – Robinson Treaties

• “What is the common intention that best reconciles the interests of the parties at

the time the Treaties were signed?” (para 2) • How to interpret the common intention? . appreciate the Anishinaabe and Euro-Canadian perspectives . look at “the history of the parties’ cross-cultural shared experience” . how does the “Crown’s duty of honourable dealings with Indigenous peoples” inform interpretation of the treaties?

Your sovereignty. Your prosperity. Our mission. 7 Anishnaabe Perspective in Negotiating the Robinson Treaties Indigenous Legal Issues – Robinson Treaties

• “Chief Shingwaukonse was a leader with a vision for his people. He recognized that times were changing and that it would take new and creative strategies to preserve and sustain his people’s cherished way of life. He pressed for a settlement of Anishinaabe claims and focused on plans for self-determination and self-sufficiency

for his people.” (Para. 38.)

Your sovereignty. Your prosperity. Our mission. 8 21st Century First Nation Perspectives in Negotiating a Modern Treaty Indigenous Legal Issues – Robinson Treaties

• “Today as we celebrate this moment in our history, I want to recognize and acknowledge the courage and wisdom of the elders and the leaders who went before us. Many of them did not live long enough to see this day, but it is their vision that we will carry forth as the foundation for future generations of Labrador Innu.” Innu Nation Grand Chief Joseph Riche on the signing in 2011 of an Agreement in Principle towards a modern treaty for the Innu of Labrador

Your sovereignty. Your prosperity. Our mission. 9 Anishnaaabe Perspective (Part II) Indigenous Legal Issues – Robinson Treaties

. Governance – Council Fires etc. . Kinship and Doodems . Fictive Kinship - Helpful explanation for terms “Great Father, “my children” – not originally paternalistic terms, when understood from the Anishnaabe perspective . Gifts, Presents, Reciprocity . Anishnaabe Perspective on Creation and Relationship to Land Why does understanding the Anishnaabe perspective matter in this treaty interpretation? . “All of these features of the Anishinaabe perspective informed and influenced the Anishinaabe’s reactions to Euro-Canadian incursions on their land and to the desire of the Crown to enter into a treaty for the surrender of this land.” (para 61)”

Your sovereignty. Your prosperity. Our mission. 10 Doodem map of North shore of Lake Huron

Donald Worme presentation,

September 2020 to The Advocates’ Society conference:

“The Right To Be Heard”

Your sovereignty. Your prosperity. Our mission. 11 Recognition of Anishnaabe Law Indigenous Legal Issues – Robinson Treaties

. Anishnaabe law and legal principles in this proceeding: . Provided as factual evidence on the Indigenous perspective . Court was not requested to apply Anishnaabe law, but it was recognized by the Court as factual evidence . Findings of facts about Anishnaabe law were not appealed . Comment: These factual findings re Anishnaabe law have significant relevance beyond this decision . Court found that the Crown “recognition of Anishinaabe sovereignty … survived the unilateral declaration of

Crown sovereignty.” (para. 72)

Your sovereignty. Your prosperity. Our mission. 12 Crown and Anishnaabe relationship: The Written Record Indigenous Legal Issues – Robinson Treaties

• Key principle for historic treaty interpretation:

Caution against accepting the written record where it intends to report the

indigenous perspective (para 64)

Your sovereignty. Your prosperity. Our mission. 13 Crown and Anishnaabe relationship: Covenant Chain alliance Indigenous Legal Issues – Robinson Treaties

• Royal Proclamation of 1763 – Was preceded by the process of the British seeking to extend the Covenant Chain alliance to the Western Nations including the Anishnaabe • British tried, through various Councils, to seek their alliance but …. • Pontiac’s War (led by Odawa Chief Pontiac) against the British • RP: principles for treaty making, and source of a “special relationship between the Crown and indigenous peoples which requires the Crown to act honourably” (para 79) • Council of Niagara of 1764: Treaty or not? What was agreed was it was a “diplomatic exercise” in which the British sought to renew and strengthen the Covenant Chain alliance with Western Nations and others • “diplomatic discourse” developed before the Robinson Treaties were signed: “cross- cultural merging of Anishnaabe protocols and traditions and British legal customs” regarding diplomacy (para 89) • War of 1812 – British invoked the Covenant Chain alliance to seek the support of the Anishnaabe, and they responded, with Anishnaabe warriors fighting together with British soldiers. Chief Shingwakounse (from Garden River), a key negotiator for the RHT, received medals for the British for his service • BUT THEN transition from military alliance to civil control through Colborne civilization policy

Your sovereignty. Your prosperity. Our mission. 14 Process of Recognition by Crown of Anishnaabe Title Indigenous Legal Issues – Robinson Treaties

• mining exploration and development taking place on the north shore without any treaty and Crown issuing licences for it • long before Canada’s Comprehensive Claims process for modern treaties requiring use and occupancy maps and extensive anthropological evidence before land claims would be accepted, long before the decades-long court cases in Delgamuukw and Tsilhqo’tin regarding aboriginal title, the Anishinaabe had to prove to the Crown that it was their land, and they did • Paragraph 144: echoes of modern aboriginal title test • First Nations fought back: repeated diplomatic exchanges, petitions, memorials delivered to the Crown that the territory was their land and they needed to be compensated for the mining activity. • advocated for their land claims and protested the illegal occupation of their land and sought compensation for the perceived mineral wealth. • Crown’s opinion on the Anishnaabe land claims evolved over time • eventually the Crown accepted their claims that the territory was their land

Your sovereignty. Your prosperity. Our mission. 15 Anishnaabe perspectives re seeking compensation Indigenous Legal Issues – Robinson Treaties

• 1846 and 1847 memorials of Chief Shingwakouse and other Chiefs to Governor Generals Lord Cathcart and Lord Elgin (para 126) • Recites historical “Already has the white man relationship and military licked clean up from our lands loyalty to the Crown. the whole means of our • Expresses confidence in subsistence, and now they the British to provide remuneration for commence to make us worse Anishinaabe lands if and off they take everything away when the British wanted from us father.” (Aug, 1846) the lands (July, 1847)

Your sovereignty. Your prosperity. Our mission. 16 Vidal-Anderson 1849 Report …. Indigenous Legal Issues – Robinson Treaties

• Commissioners Vidal and Anderson wrote 1849 report after numerous meetings with 16 of 22 Chiefs • Important factual point re HTF rights provisions in the treaties that were informed by this report (which V and A offered as part of their rationale for a lower than previous annuity): “The Anishinaabe would retain undisturbed possession of their hunting grounds in the interior (they would relinquish nothing but mere nominal title) (para 161) • Compensation model “took into consideration ‘the actual value’ of the territory.” • Included “novel proposal for the new treaty to make “terms in accordance with present information of its resources” while adding a provision to increase the annuities “upon further discovery and development of any new sources of wealth” (para 174) • Chiefs Shingwakounse and Peau de Chat had proposed same concept years before • The annuities augmentation clause was not found in earlier treaties; a way to “bridge the gap between the expectations” of the First Nations and the Crown • After V and A left and were returning to Toronto, and the First Nations saw no prospect of the Crown doing anything, frustration grew Mica Bay incident and arrest of Chiefs Shingwaukonse and Nebenaigoching

Your sovereignty. Your prosperity. Our mission. 17 The Treaty Negotiations Process Indigenous Legal Issues – Robinson Treaties

• Pre-meetings with Chiefs of Superior and Huron, followed by Treaty negotiations with Robinson and the British Governor General Lord Elgin at the Anishnaabe Council Fire at Bawaating (SSM), a centre of Anishnaabe governance, observing Anishnaabe protocols and procedures • Court determined after consideration of facts and opinion evidence that “the augmentation clause was discussed or presented before or at the full council including Chief Peau de Chat and Chief Shingwaukonse on September 5, 1850 or the early part of the day on September 6, 1850” and was therefore an incentive to the Superior delegation to sign the Treaty (para 268)

• Note: Re HTF rights, Robinson when transmitting his 1850 report from the treaty negotiations wrote that, during the negotiations with the chiefs from Lake Huron when they countered agst the low offer on annuities, he responded that “they would have the same privileges as ever of hunting and fishing over the whole territory”, because the land “will in all probability never be settled except in a few localities by mining companies” (para 227)

Your sovereignty. Your prosperity. Our mission. 18 Post-treaty Record and Principles of Treaty Interpretation Indigenous Legal Issues – Robinson Treaties

• Why assess post-treaty record? – “to determine if there is evidence by conduct or otherwise of how the parties understood the terms of the Treaties”. R. v. Taylor and Williams (1982), 1981 CanLII 1657 (ON CA – “generous rules of interpretation that extend beyond the four corners of the treaty document R. v. Marshall, 1999 CanLII 665 (SCC)

• CONSIDER: What does this mean for other treaty rights? Resource companies cannot just read H,T,F rights set out in treaty text nd say “we understand”. What do THOSE treaty rights mean, as they too are protected and affirmed by s. 35 of Constitution Act, 1982? Relevant finding: One of the purposes of the treaty was that these rights were included as part of the assurance “to maintain the ways of life associated with [these rights]” (para. 341) • Canada’s argument: annuities are individual entitlements, not a collective entitlement (took no position re cap)(para 282, 301) • Ontario’s failed argument re $4/person cap: ”failure of the Anishinaabe to expressly articulate their claim that the Crown promised increases to the annuity beyond $4 per capita in these post- Treaty accounts is proof that the Anishinaabe did not hold that understanding” (para 282, 298) • Court accepted expert views re frailties of later post-treaty record and considered the “context… [that] Anishinaabe leaders were focused on other and more immediate needs and concerns” . • Court concluded that the post-Treaty written record has “limited value in the interpretative exercise” (para 303). The post-Treaty record is “vague, inconsistent, and conflicting. It is of limited assistance to the exercise of searching for the parties’ common intention.” (para 318)

Your sovereignty. Your prosperity. Our mission. 19 A note re Post-treaty Petitions Indigenous Legal Issues – Robinson Treaties

• “Anishinaabe petitioners did not mention or define the full treaty obligation in each complaint. The petitions themselves show that the Anishinaabe were not detail focused. Their way of life had been seriously disrupted. Even if and when there was game to hunt, they were being prosecuted for harvesting. They were being pressured to “remove” to other settlement areas. Suggesting that the Anishinaabe made written grievances that would comply with a modern idea of a fully realized claim is asking too much of this

interpretative process.” (para. 319) – Comment: ON and Canada today sometimes take the same view in negotiations with First Nations re implementing more recent settlements

Your sovereignty. Your prosperity. Our mission. 20 Principles of Treaty Interpretation Indigenous Legal Issues – Robinson Treaties

Not controversial in law, but bears reiteration. Tendency of practicing lawyers is to want to read just the text of the treaty, because that is easy and accessible:

“overall goal and the bottom line of treaty interpretation is to choose from among the various possible interpretations of common intention at the time the treaty was made, the interpretation that best reconciles the parties’ interests” (R. v. Marshall, 1999 CanLII 665 (SCC), at paras. 14, 78, citing Sioui v. Quebec)

Your sovereignty. Your prosperity. Our mission. 21 Principles of Treaty Interpretation Indigenous Legal Issues – Robinson Treaties

The “central purpose of the Robinson Treaties, to renew a relationship on which this country was founded, must remain at the forefront of the interpretation exercise.” (para 334)

Your sovereignty. Your prosperity. Our mission. 22 Highlights re Steps in interpretation Indigenous Legal Issues – Robinson Treaties

• Step 2: Consider the Historical and Cultural Context

Anishnaabe perspective: Crown perspective: • principles of respect, • Colonial intention to act justly responsibility, reciprocity, and and liberally renewal (part of the process of • Pressures from Anishinaabe renewal in the context of their leaders and Chiefs, mining Covenant Chain relationship) sector, dire financial situation. were fundamental to the • adhere to the Colborne Policy Anishinaabe’s understanding of about limiting per capita relationships. payments to Indians • Treaties were not a contract and

were not transactional (paras 415- 423)

Your sovereignty. Your prosperity. Our mission. 23 Highlights in steps re interpretation Indigenous Legal Issues – Robinson Treaties

• Step 3: Determine the interpretation that best reconciles the common interests . “If and when” approach, consistent with principle of reciprocity . Comment: Resonates with modern treaties and modern settlements with the Crown re revenue sharing

Your sovereignty. Your prosperity. Our mission. 24 Role of the honour of the Crown Indigenous Legal Issues – Robinson Treaties

• Agreed: Crown must act honourably in all of its dealings with the beneficiaries of these Treaties: in pre-Treaty meetings, in Treaty Council negotiations, and in past and future interpretation and implementation of the Treaties. • Agreed: Honour of the Crown applies to treaty making, and may be the source of legally enforceable duties • In contention: What is the nature and extent of those duties or concrete practices as they relate to

the implementation of the Treaty promises? (para. 482)

Your sovereignty. Your prosperity. Our mission. 25 Honour of the Crown, fiduciary duty and the role of the Courts Indigenous Legal Issues – Robinson Treaties

• Agreed: Purpose of the honour of the Crown is to facilitate the reconciliation of the pre-existing sovereignty of Indigenous peoples with the assumed sovereignty of the Crown. Honour of the Crown CAN give rise to specific fiduciary duties “when the Crown assumes discretionary control over a specific or cognizable Aboriginal interest.” (para. 499, citing SCC’s Manitoba Metis Federation case of 2013) • SCC has stated that negotiation is “preferable” to achieve this reconciliation, but if after 168 years, negotiations have not worked, then Court decided that it must give direction • 2 classes of possible fiduciary duties: . Sui Generis Fiduciary Duty: arising from the “Crown’s discretionary control over a specific or cognizable Aboriginal interest.” Not found to exist on these facts . Ad Hoc Fiduciary Duty: arising where the Crown has “undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of a beneficiary or beneficiaries.” Found to exist: “Crown undertook to act exclusively in the best interest of the Treaties’ beneficiaries in their promise to engage in a process to determine if the economic circumstances warrant an increase to the annuities.” (para. 519).

Your sovereignty. Your prosperity. Our mission. 26 Content of the fiduciary duty Indigenous Legal Issues – Robinson Treaties

• Crown has discretion in implementing the duty to engage in the process to determine if an increase is warranted without incurring economic loss • Discretion not unfettered: includes, to some extent, duties of loyalty, good faith, disclosure • Standard of care of the Crown as fiduciary: that of a person of ordinary prudence in managing their own affairs. • Court decided on general principles for determining net revenue (revenue – expenses) with details left to Stage 3 – Revenues: those from the “use, sale, or licensing of land (which could include the waters)” in the territories, but not taxes – Crown expenses: related to collecting, regulating, and supporting those revenues • “Fair share” for First Nations of these net revenues to be determined later, but it is not 100% • The Court seemed to encourage negotiation re sharing of the net revenues: “The Anishinaabe and the Crown now have an opportunity to determine what role those historic promises will play in shaping their modern treaty relationship.” (para. 573) • ON argued for an implied indexation term for the $4/person annuity as the appropriate interpretation to meet common intention. • Court rejected that, given the findings re the meaning of the augmentation clause • Court noted that if on appeal it were found the augmentation clause is inoperative, the indexing claim should be looked at again.

Your sovereignty. Your prosperity. Our mission. 27 Postscript – Fresh Evidence Indigenous Legal Issues – Robinson Treaties

• Fresh evidence test applied after close of Stage One evidence and decision (Restoule v. Canada (Attorney General), 2019 ONSC 5329 (CanLII)

– Ontario sought to admit as fresh evidence the Fort William Jesuit Mission Diary and a September 30, 1850 entry, and an expert opinion

– Court rejected this, after applying the 2-pronged test in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 and consideration of additional factors referred to in other cases

• Whether the new evidence, if presented at trial, would probably have changed the result; • Whether the new evidence could have been obtained by the exercise of reasonable diligence at the time of the proceedings. • Additional factors considered: finality, apparent cogency of the evidence, delay, fairness, prejudice •

Your sovereignty. Your prosperity. Our mission. 28 Postscript – Fresh Evidence Indigenous Legal Issues – Robinson Treaties

• ….in order to find meaning in this Entry for the purposes of interpreting of the Treaty one must make a long list of assumptions and draw inferences based on those qualified premises. The Entry is brief and has all of the other weaknesses of hearsay evidence which I have outlined above. It is completely lacking in the type of detail needed for it to be useful in the interpretation task. The expert’s explanation and contextual evidence and opinion do not add to the cogency or probative value of the Entry. His evidence does not help Ontario to meet the test that the Entry would probably have changed

the result at trial. (para. 62)

Your sovereignty. Your prosperity. Our mission. 29 Postscript – Fresh Evidence Indigenous Legal Issues – Robinson Treaties

• The plaintiffs have referred to the expert’s opinion as “wholly speculative,” “a daisy chain of speculations” and “built on a house of cards of unwarranted and unsupportable assumptions about what may have taken place”. Unfortunately, I cannot disagree. The opinion is based on the fact that the Jesuit diarist who heard from some unidentified person about the distribution of funds did not include in his brief Diary Entry any mention of an objection by Chief Peau de Chat. The absence of any evidence recording Chief Peau de Chat’s objection to the assumed contents of an assumed public speech by Mackenzie cannot form the basis of cogent and probative evidence on which to assess whether the evidence would likely have changed the result at trial. The expert opinion does not provide any context or explanation to strengthen the probity of the new evidence. The opinion is based on mere speculation and therefore does not strengthen the impact of the fresh evidence. (para. 63)

Your sovereignty. Your prosperity. Our mission. 30 Post script- Fresh Evidence Indigenous Legal Issues – Robinson Treaties

. Should there be a relaxed standard for admission of fresh evidence? . Court rejected Ontario’s submissions to relax these tests for admission of new evidence in historic treaty cases . Dismissed ON’s arguments that 3 of the witnesses for the First Nations (Dr. Paul Driben, Mr. Alan Corbiere and Mr. James Morrison) had the evidence in their hands and failed in their obligation to the Court to disclose it, and that this argued in favour of a relaxed standard

. Court found that the facts did not support the proposition that the plaintiffs even had this evidence in their hands

. “By way of advice, counsel should be slow to make allegations against an expert witness’ failure to fulfil one’s duty to the court and should not do so without considerably more effort to ensure the correctness of their facts. And where the allegations are based on inferences, the logic should be unassailable.” (para. 139)

Your sovereignty. Your prosperity. Our mission. 31 Negotiation and Litigation in Treaty interpretation and implementation Indigenous Legal Issues – Robinson Treaties

. Topic for another day: How is reconciliation advanced, or not advanced, by treaty litigation compared to treaty negotiations? • Finality of court (or is it final – reviewable nature of the treaty obligation) • How long to negotiate? • Independent arbiter applying common law vs. power imbalance in negotiations • What is/should be the role of indigenous law in Canadian courts and in negotiation? • Relationship building considerations: – Treaties are not one-off contracts – tendency towards Crown treating them as such in litigation. • Time and cost

Your sovereignty. Your prosperity. Our mission. 32