The Supreme Court of Canada in the case of   Attorney General of Ontario v Restoule (2024) (the “Robinson Treaties Case”) over and over again confirmed that the First Nations who entered into those 2 treaties were and are “nations.”  In fact, that is why in Canada we often refer to them as First Nations. In the U.S. they are also frequently referred to as nations, but I am not as familiar about their legal effect there.

The Supreme Court of Canada also confirmed that that treaties are constitutional documents. Specifically, this is what it said,

“treaty rights are constitutionally protected by s. 35(1) of the Constitution Act, 1982, and relatedly, treaties are nation-to-nation agreements that engage the constitutional principle of the honour of the Crown.”

The  court also said, that treaties represent a “the nation-to-nation alliance.” Doing so will require each party, but especially the Crown, to recall the purposes behind the treaty promises. The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future. It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

The court said treaties represent a

“ nation-to-nation alliance…. Doing so will require each party, but especially the Crown, to recall the purposes behind the treaty promises. The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future. It is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision. Nothing less will demonstrate the Crown’s commitment to reconciliation.”

No only are treaties nation-to-nation agreements they are expected to last for a long time.  As Justice Jamal said on behalf of the Supreme Court in the Robinson Treaties case “treaty interpretation involves the application of constitutional principles such as the honour of the Crown, with lasting implications for the nation-to-nation relationship between Indigenous peoples and the Crown.”

 The court also commented on the issue of the Statute of Limitations. This is the law that determines the deadline before which a legal action must be launched. After the applicable time has elapsed the claimant loses the right to continue a legal action for relief. Ordinarily such limits are reasonably short. There are often good  reasons for such limits, but they are not absolute either. For example, in cases of sexual assaults on minors, limitations have been extended so that justice can be done.

I would have thought the court would do that in the case of the Robinson Treaties, but that is not what the court did. The court said the Limitation period would be that provided in the Ontario legislation at the time. It then went through a complicated analysis and concluded, as did both the trial judge and the Ontario Court of Appeal before it,  that “the plaintiffs’ breach of treaty claims are not statute-barred by Ontario’s limitations legislation.” In other words no limits applied to the claim. The reasons were complicated so I will leave it at that.