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

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Restoule V. Canada (AG), Stage One: Lessons in Treaty Interpretation and More 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 Robinson Treaty 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 treaty rights. 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 First Nations, 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
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