Category Archives: Indigenous Issues

Are Land Acknowledgements worth the Effort?

2024 Trip to Eastern Canada, Indigenous Treaties, Indigenous--Reconciliation

Brockville, like so many other places in Canada is treaty land and the people who live there are treaty people, as are we in Steinbach. Some of my friends are tired of land acknowledgments. Not me. I find them interesting and I believe they are worth thinking about when you hear them.  Here is the land acknowledgment I found on the website of Southeastern Ontario tourism the region where Brockville is located:

Land Acknowledgement

“We would like to acknowledge that the land we identify as South Eastern Ontario is the traditional territory of the Haudenosaunee (Ho-de-no-sau (“sho”)-nee), Anishinaabe (“anish-naw-bee”), and Huron-Wendat Peoples. South Eastern Ontario honours and respects the land, the people, and the Treaties. We are extremely thankful for the original tour guides of these lands and all that they have shared. All those that reside, work, and play on these lands are treaty people and we must honour the treaties in a mutually beneficial and equitable manner.”

 

What I want to acknowledge is that various peoples live here. Not just descendants of European settlers.  The settlers and their descendants are here because they entered into agreement with the local Indigenous groups to occupy it. Those European settlers and their descendants benefited tremendously from those treaties. The Indigenous people also benefited from those treaties. Everyone who lives there today, is a treaty person. We should not take those treaties for granted. Treaties are important for everyone. And as I have been saying, we should keep them up to date, or we will regret it.

The problem is that too many liberals see an injustice, mouth platitudes agains them and do nothing real to address thinking the find words are enough to prove their moral worthiness. Indigenous people and Canada need more than that.

Treaties have their deficiencies too. It all fine and good to signal our moral worthiness by making fine sounding statements. Acknowledging that one is aware of the fact of dispossession that occurred in America, and Canada too, when European settlers arrived in vast hordes but as

However, having said that, land acknowledgments have their deficiencies too. Kathleen DuVal wrote an interesting and critical article for the New York Times about land acknowledgements from an American perspective.

Du Val said, all too often, “they’ve begun to sound more like rote obligations.” That doesn’t mean the acknowledgements should be abandoned, it does mean those of us who like them need to get real. We have to actually do something or persuade our political leaders to take action on our behalf.

Du Val said this, “Instead of performing an acknowledgment of Native peoples, institutions should establish credible relationships with existing Native nations. What I disagree with is the word “instead.’  Rather I would say, “In addition to.” We need to do both. The acknowledgments alone are clearly insufficient.

She also pointed out, that the Native Governance Center in the U.S. said that unfortunately land acknowledgements have often “become an excuse for folks to feel good and move on with their lives.” Journalists Graeme Wood and Noah Smith have criticized such acknowledgements as “moral exhibitionism.” Land acknowledgements that lead people to think that is all they need to do  can become harmful and we must work hard to make sure we don’t fall into that that trap.

For example. Du Val claims that land acknowledgements can reinforce the harmful “myth of Indigenous disappearance. That myth is a long-time mental block in the US but I am not sure it is as common and in Canada. Perhaps my Canadian indigenous friends can tell me if I am wrong about that. If I am, then we must take active measures to disable the myth too and must not allow land acknowledgements to stand in our way.

Indigenous People in Canada and the U.S. deserve more than that. They deserve sincere engagement on the part of their countrymen and women. Its time for action following our words.

 

 

 

Success at last: Michipicoten First Nation

2024 Trip to Eastern Canada, Indigenous People After Contact, Indigenous Treaties

 

I want to briefly consider one more treaty that affects the region we travelled to around Wawa Ontario. But this one has a happier ending.

This area we travelled through on our way to Nova Scotia is incredibly interesting. Particularly, because I learned so little of this going to school from Kindergarten to Law School I now find it very interesting to fill in at least a few of the gaps. And there are many gaps.

There are many Indigenous groups across Canada and I have discovered that they all have interesting stories. At least as far as I now know. Frankly, I have only looked at merely a few of them.

One more interesting area in the region Chris and I drove through this autumn was the Michipicoten First Nation. I have obtained information from the Michipicoten First Nation website.  According to them the history of the Michipicoten First Nation is

“a history of forced relocations that were endured by the First Nation as a result of “mistakes” and unfair actions taken by the Government of the day. From the time of the first contact in the early 17th century the Michipicoten First Nation had an established presence at the mouth of the Michipicoten River, on the northeast shore of Lake Superior. In 1850 at Sault Ste. Marie, Ontario, Chief Tootomenei had asked that the reserve be from the mouth of the Michipicoten River and the Harbour to the mouth of the Dore River. Instead, the Crown did not survey out the proper location but set aside the reserve of Gros Cap (Indian Reserve 49) which was located several kilometres west of the mouth of the Michipicoten River and harbour. As a result, Michipicoten First Nation did not live on Reserve land for most of its history between 1850 and 1970.”

 

As a result, they see their own history as a history of the displacement of their people. Involuntary displacements are a recurring theme in the history of Canada. It is no exaggeration to say that the history of Canada since the arrival of Europeans is a history of Europeans and their successors displacing the people they encountered here. In different ways, it happened over and over again.

By mistake or perhaps caprice, the Michipicoten First Nation were forced to settle on land that was not of their own choosing. Instead, the “best land” was sold to a development company and the Algoma Central Railway Co. (‘ACR’). Those transfers took away their best land and as a direct result they were cut off from their traditional camping grounds and waterway route. The coastal land they always used was cut off from them. There was no road into the site. Consequently, “Michipicoten First Nation did not live on Reserve land for most of its history between 1850 and 1970.”

Unfortunately, the land they were given was unsafe for a sanitation system and once again they had to move. They negotiated a deal with Ontario Hydro for land they currently occupied and Hydro agreed to build a road to their land as part of that deal.  In exchange, Hydro had the right to put a transmission line across their land. Another group attained a reserve elsewhere and occupied it until the fur trade dropped off.

Now the Michipicoten First Nation advises that,

“Michipicoten First Nation Gros Cap IR49 today and its surrounding lands include extensive coastline along the shores of Lake Superior, the addition of lands settled through various land claim settlements, including the reserves as Missanabie and Chapleau and boasts a pristine and eco-rich environment of unparalleled wilderness beauty, unpolluted waters and an abundance of wildlife, birds and indigenous plants. Fishing, hunting, and trapping are still practiced by the people and children can be taught the ways of their Ancestors.”

 

This now looks like a success story. But clearly it was an uphill struggle to obtain this land. Now (as of October 2024 when we drove nearby), in their own words,

“Michipicoten First Nation is a vibrant community with approximately 1,442 (October 2024) members dispersed around the globe, building on socio-economic independence and with a strong sense of community and cultural identity, Michipicoten First Nation strives to maintain harmony and balance with Mother Earth, neighboring First Nations and surrounding communities.”

 

In their own words, it is clear that the Michipicoten First Nation are a proud people who have created, after some sever challenges, a vibrant community.

Success at last.

Should Treaties be Abandoned?

Aboriginal Law, Colonialism, Indigenous People After Contact, Indigenous Treaties

 

Yesterday, I argued that it is difficult to walk away from treaties because they are constitutional documents. The next question is should we want to walk away from them?

To answer this question intelligibly we must understand what treaties are and how they came about.

First, is it true to say that Indigenous people who will be paid treaty payments are getting unequal or special treatment?  After all the First Nations are being by the Crown for payments that are due by contract. The Crown promised to pay these annuities  in return for obtaining the right for itself and its assignees to occupy and use the land of the First Nations. Paying what is due and owing  is not a gift. The Crown got the land and promised to pay for it. Some people sell things or rights to the Crown and are paid for them. Others don’t receive that money because they did not enter into an agreement to sell something, such as land. There is no unequal or special treatment here.

Secondly, what is the purpose of treaties? It is more than payment of money for land. As the Supreme Court of Canada explained in an earlier case, Little Salmon,:

“Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what is now Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations. The objective was not only to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization and settlement.”

 

In other words treaties are created to facilitate nations living together peacefully. As a result of the Robinson treaties Canada obtained tremendous benefits for centuries. Should it now be allowed to renege on its promises and pretend those promises were never made? Or should it rather renegotiate those treaties.  Indigenous people mostly thought that this is what would occur after treaties were made. They would last for a long time, i.e., they would last” as long as the sun shines and the rivers flow,” but they would be periodically renewed and renegotiated. Indigenous people expected that. Sadly, that has not happened as often as it should it.

Personally, I think the Crown should renew and renegotiate those treaties. Just like Canada should renew its Charter of Rights and Freedoms and the United States should renew its Constitution. This won’t happen overnight and abandoning them is not the best way to do this.

Legal scholar Professor Janna Promislow explained why this makes the interpretation of treaties so important:

“Serving the ends of justice in the treaty interpretation context, however, is more complex than the interpretation of contracts, due to the historical nature of the agreements and the constitutional character of the moments of agreement — and because the foundational values behind protecting historic treaty rights are arguably less understood and more contentious than the values behind protecting freedom of contract.”

 

The Supreme Court of Canada in the Robinson Treaty case said this about the rights obtained by the First Nations who entered into the treaty with Canada and Ontario,

“In this case, for example, this Court has to interpret the scope and content of constitutionally protected rights and obligations that embody the very conditions on which pre-existing Indigenous peoples agreed to share their most precious gift — the land itself — with newcomers.”

 

Treaties are important documents. Societies are based on them. They are not entered into for the short term, but the long term because treaties give stability to the nations involved in them. We must be very careful before we abandon them. They are important for all of the nations involved. That is why Justice Jamal said in the Robinson Treaties case on behalf of all 9 judges:

“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.”

 

As J. Y. Henderson, Treaty Rights in the Constitution of Canada, which was also adopted by the Supreme Court of Canada in the Robinson Treaties case:

“Treaty texts are “evidence of the transgenerational rights and obligations of the treaties and their promises”, and are “meant to impose obligations on the British sovereign and the delegated colonial governments and subjects into the distant future”

 

S. Grammond in the legal text The Oxford Handbook of the Canadian Constitution pointed out that treaties are not just binding on those who signed them,

“they are binding upon all Canadians who, because of the Crown’s assertion of sovereignty, are also effectively implicated in these founding agreements. A treaty is a compact “not only among the provinces or ‘founding peoples’, but also ‘between the non-Aboriginal population and Aboriginal peoples’”

 

That does not mean the treaties should be written in stone. They must be renewed and renegotiated frequently. That does not happen overnight. It takes time, effort, goodwill, and yes, even honour!

And that is what Canadians should do. The Indigenous people and the government of Canada and Ontario non-Indigenous people should get together from time to time to renew and amend those treaties to make them better and more effective. Like my cousin said, this is 2024. Times change. We can do better. But reneging is not the answer.

 

 

Can Treaties be Abandoned?

Aboriginal Law, Indigenous People After Contact, Indigenous Treaties, Law

 

Recently one of my very intelligent cousins, and as well a good friend told me more or less the same thing. My cousin said,  “This is 2024 so all people should be treated equally as Canadians. The treaty and reservation system should no longer be valid.”  My friend said no system of politics will work when one side gets special treatment or has special rights.” I agree with both of them. All people should be treated equally and none should have special status, but this does not end the matter. Other principles are at stake here too. For example, countries should their keep their promises. And countries should act honourably. Sometimes important values or principles collide and we have to deal with that.

The American Constitution is pretty old and far from perfect. Should it be abandoned too? Under that constitution slavery was acceptable and women could not vote nor Indians nor black people. That’s pretty bad. Yet, we have to be careful when we throw out constitutions because a lot will be thrown out with it. A lot is tied to that Constitution. We must be careful not to throw out the baby with the bath water.

I agree that all people should be treated equally as Canadians. Just as all people should be treated equally as Americans.  And no people should have special status as a result of their birth. But we all know that doesn’t always happen that way.  We want to get there. But we are not there yet. Discrimination and racism are real so what should we do about it?

The American Constitution tolerated for centuries a system whereby slavery was permitted, indigenous people and black people could not vote, women could not vote and white people were allowed to jerry-rig the system to effectively make their votes count more than their non-white fellow Americans. Over time, improvements were made, but the system is still not perfect.

We must also remember that remarkable change can happen.  A good example is France and Germany.  I remember on a trip in Africa when I had an interesting talk with one of our German guides. With tears in his eyes, he talked about how the German and French nations had fought and quarrelled and gone to war over centuries, and since the EU was established, they had become best of friends.  During all that time it seemed impossible. During World War II Japan and the United States engaged in a savage war. After the war they also became good, if not best friends. I hope this is what happens with the Indigenous and non-Indigenous people of Canada.

Canadians must remember that treaty rights are constitutional rights.  They are entrenched, which means it is not easy to change them. They can be changed but it difficult. This what Justice Jamal said on behalf of a unanimous Supreme Court in the 2024 the Robinson Treaties case:

“As already noted, historic Crown-Indigenous treaties are sui generis agreements protected under s. 35(1) of the Constitution Act, 1982. The constitutional nature of treaty rights demands that appellate courts be given wide latitude to correct errors in their interpretation. Historic treaties “establish or reaffirm a fundamental and enduring relationship between the Crown and an [A]boriginal people”… They are “an exchange of solemn promises between the Crown and the various Indian nations”… Since 1982, s. 35(1) of the Constitution Act, 1982 has recognized and affirmed that existing treaty rights have constitutional status and attract related constitutional protections.”

 

It was on the basis of those treaties that Canada gained the right to occupy and develop the land around Lake Superior and Lake Huron country. The Robinson Treaties were just one example of that.  As the Supreme Court said, as  a result of those treaties,

” since the Robinson Treaties were concluded in 1850, the Crown has derived enormous economic benefit from the ceded territories through mining and other activities. Meanwhile, as the Court of Appeal noted, the Anishinaabe treaty partners have experienced many deprivations in their communities, such as “substandard housing and boil water advisories” …One treaty partner has thrived, while the other has often experienced immense hardship.’

 

Can the party who got all the benefits now renege and say, sorry we did not pay what we promised to pay and its your tough luck?  Would it be right for Canada and Ontario in the case of the Robinson treaties to renege on their promise to pay after reaping all the benefits? In law if one party wants to rescind an agreement it must first return what it obtained in return for that agreement. Isn’t that fair?  Canada and Ontario have received a lot. Do they really want to give back what they got? Do they want to give back the land in the same condition or better as when it was first shared? I would think not.

So, whether Canadians like those treaties or not, we are stuck with them until the treaties are renegotiated or the Constitution of Canada amended. We can’t just walk away from them.

So far I have pointed out that Canada and Ontario can’t easily get out of their treaty obligations, but the more important question is should they try to get out of them? That is for my next post.

First Nations are Nations

Indigenous People After Contact, Indigenous Treaties

 

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.

Treaties from and Indigenous Perspective: Renewing the Treaty Relationship and Restoring the Crown’s Honour

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The Supreme Court of Canada in the Robinson Treaties case also commented on treaties from the Indigenous People’s perspective. It is sometimes a little different from that of other Canadians. On behalf of the unanimous Supreme Court Justice Jamal said,

 

I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found,

 

“[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown” …. For the Anishinaabe, “the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances”

 

 

Actually, the Indigenous people that brought forward the claim on behalf of their people, said it best in their formal claim,

 “What the Treaty promises is . . . an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner”

Meaningful consultation and negotiation were essential, from their perspective, to a proper treaty relationship.  As a result, the Supreme Court did not specifically tell the governments of Canada and Ontario how they had to satisfy the claims of the Indigenous People of the Superior Treaty, but it told them how they had to go about it and if the Indigenous claimants are not satisfied within 6 months they can bring the matter back to the court for final determination by it. If that becomes necessary however the governments will have failed to “to effectively renew the treaty relationship and restore the honour of the Crown.” By giving the governments a short time line, it was giving the government a chance to encourage the restoration of the treaty relationship. I thought this was very wise on the part of the Supreme Court.

Justice Jamal gave one more final word to the parties:

“Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the “establishment of a relationship of trust and mutual assistance” between Indigenous peoples and the Crown, but the details of that relationship “must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples”

 

In this way, the judgement of the Supreme court allowed the parties a final chance to restore trust, a crucial ingredient of a healthy treaty relationship.  We will have to wait to see if it is possible for both governments to do that.

 

In this case the two governments, Canada and Ontario, did the worst thing they could have done. For 150 years they refused to negotiate in good faith with the First Nations. They stuck their heads in the sand.  And now we will have to pay the price.

 

I must admit I have my doubts that negotiations will succeed because the relationships are so bad. It’s like a husband and wife who can no longer talk to each other. The future looks grim. Lets hope I’m wrong. Canada and Indigenous people must really solve this problem that seems unsolvable.

 

 

True Reconciliation

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The issue of reconciliation was also relevant to the decision of the Supreme Court of Canada in the case Ontario (Attorney General) v. Restoule  often called the Robinson Treaties case.

Canada has apologized to its Indigenous People through a declaration to that effect by its Prime Minister at the time Stephen Harper. It also accepted the recommendations of the Truth and Reconciliation Commission report that was delivered to it by the Commissioners. In that process Canada promised to work towards reconciling with the Indigenous People of Canada whom it acknowledged had been badly treated by Canada.

From time to time, the Supreme Court of Canada has spoken about Canada’s duty to reconcile with its Indigenous People. It did so as well in this very recent  case  involving the Robinson Treaties of Canada. When the court considered to what extent if any, and how, it would intervene in the Robinson treaties it also reflected on the proper role for courts to play in Canada’s legal system as part of the judicial branch in this reconciliation process.

It accepted what a previous court had said, namely, “[r]econciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences.” In other words, sometimes it is better for the court to stay on the sidelines and let the parties work it out. Such working out is often best for all concerned, and in the case of treaties, it is often best for the country to have its courts allow them the space to reach an amicable agreement, rather than having the court impose its view on the parties.  That is how the parties hopefully can learn to reconcile.

In other words, the court concluded that through negotiated settlements, in good faith the parties would be much better equipped to reconcile with the First Nations. That is what the First Nations of the Huron Robinson Treaty did.  The court also noted that “true reconciliation, is rarely, if ever, achieved in courtrooms.”

In fact, in the Robinson Treaties case, Madam Justice Martin said during the oral arguments, “accountability most certainly does take place in a courtroom.” Of course, that does not mean the courts should refrain from doing their job. In some cases, courts must do their job. Sometimes it is essential that they do.  As

Mr. Justice Jamal said,

“Indeed, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance… As in the present case, litigation may sometimes be the only way to bring an intransigent party to the negotiating table with a view to reaching a settlement and advancing reconciliation.”

 

For example, when it takes a government 150 years to do its job, clearly required by the Treaty it signed, the court must compel that government to do the right thing.

Justice Jamal wisely put it this way,

“Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much the business of the courts to review exercises of Crown discretion for constitutional compliance — to ensure that the Crown exercises its discretion in accordance with its treaty obligations and the constitutional principle of the honour of the Crown. It is appropriate in this case for this Court to order the government to repair the breach of its constitutional obligations, while leaving it up to the executive branch to determine the best means of doing so.”

 Sometimes the court must just make it clear to the government, that it must do what it has promised to do in a sacred treaty. We hope the parties can work it out as that might help the reconciliation process. We must wait and see.

 

Given that Canada took 150 years to agree to do what it ought to have done from the beginning, this sounds a bit like Polyannish wishful thinking.  I hope I am wrong.

Quantum: A Wicked Problem

2024 Trip to Eastern Canada, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

In such difficult and complicated circumstances of trying to determined the proper compensation for  a large number of First Nations who had been treated dishonourably for 150 years as was the case for the Robinson Treaty First Nations, how can a court determine, or the government for that matter, determine, the proper amount to be paid?  Clearly that is a wicked problem. A problem brought on entirely by the dishonourably conduct of the Crown.  To give you a bit of an idea about how much money is involved in the dispute you should consider that the Robinson-Huron Treaty case but not the Robinson-Superior case,  has been settled by agreement out of court by the First Nations involved and the government of Canada and Ontario.

Canada, Ontario, and the Huron plaintiffs  on June 17, 2023, publicly announced that, as a result of negotiations that had been ongoing since April 2022, they had successfully concluded out of court negotiations  to settle those claims under the Robinson-Huron Treaty for $10 billion! Each of Canada and Ontario agreed to pay $5 billion from each of Canada and Ontario. The proposed settlement was described in a joint press release as “a major milestone in the ongoing collaborative work to renew the treaty relationship and honour a treaty promise that dates back to 1850”

The other treaty claimants are demanding for compensation of the breach of the augmentation clause an astounding $126 billion! The Supreme Court of Canada acknowledged that “This figure is equivalent to approximately two-thirds of the total reported annual revenue of the province of Ontario, from all sources, in the 2022-23 fiscal year.’ A judgement for $126 billion might bankrupt Ontario and severely harm Canada.

Justice Jamal acknowledged in his judgment on behalf of a all 9 judges of the Supreme Court  that

“Naturally, where the Crown has defaulted on its payment obligations for almost 150 years, the amount due will be substantial. The Anishinaabe signatories cannot now be short-changed by the Crown’s sticker shock, which is solely the result of the Crown’s own dishonourable neglect of its sacred treaty promises.”

 

 

 

Justice Jamal on behalf of the entire Supreme Court also acknowledged that the Augmentation Clause constitutes a promise by the Crown to exercise its discretion as to possible future increases to the annuities it pays beyond $4 per person where it can do so without incurring a loss. And he said,

“This discretion must be exercised honourably, but also in accordance with Her Majesty’s desire “to deal liberally and justly with all Her subjects” — to do justice to the Anishinaabe treaty partners and Her Majesty’s other “subjects”. Accordingly, in exercising its discretion, the Crown will have to engage in complex polycentric decision making that weighs the solemnity of its obligations to the Anishinaabe and the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within the expertise of the courts.”

 

The Crown (government) must act for the benefit of all Canadians too. Not just Indigenous people. This amount must now be negotiated within 6 months or less after which the government must advise how much it will pay the Indigenous claimants and on what basis that amount has been determined.

This should be fun Not.

The Proper Role of the Courts in settling disputes

2024 Trip to Eastern Canada, Colonialism, Indigenous People After Contact, Indigenous Treaties, Indigenous--Reconciliation

 

The case involving the Robinson Treaties  went all the way to the Supreme Court of Canada two times [the first time for the courts to determine which government should pay] ended by making some remarkable decisions  about the proper role of the courts in treaty disputes.

The Supreme Court in the most recent case, relied on the writing of Law Professor Kent Roach about Aboriginal rights as follows:

 

“. . . courts that enforce Aboriginal rights must also consider a range of other factors and competing interests. Courts should provide remedies that respect institutional roles including the limits on the judiciary. In many cases, courts are hopeful that issues can be resolved out of court by a process of consultation and negotiation. This approach is particularly attractive in the Aboriginal rights context because of its potential to allow Aboriginal nations to exercise some degree of self-determination and because of the complexity of the issues and the broad range of reasonable solutions and forms of reconciliation. At the same time, Aboriginal rights may ultimately have to be enforced by the courts, albeit in a way that respects institutional roles and is fair to all those affected.”

 

That really is uncommonly wise. The Supreme Court was very reluctant to impose its view of how the Crown should exercises its discretion to compensate the Indigenous plaintiffs. It wanted to ensure that the legislature, and the executive branch, and the judiciary all stayed in their own lanes.

 

The Supreme Court even acknowledged its own limitations in this respect. It realized that it would be a very difficult task to determine how much the Crown should pay for 150 years of malfeasance. It suggested the Government would be best equipped to make such a complex analysis, but it recognized that after 150 years of dishonour it might be difficult for the First Nations to accept the government’s decision. The Mr. Justice Jamal on behalf of the unanimous Court put it this way:

 

“The amount by which the Crown might increase the annuity is a polycentric and discretionary determination that will inevitably reflect many social, economic, and policy considerations that may change over time, affecting the frequency and nature of net revenue and annuity calculations. Determining the amount of compensation owed for the past will involve similar considerations. I stress that courts are not incompetent or unable to entertain these considerations when necessary. Indeed, I acknowledge the jurisdiction of the courts to order compensation… if appropriate to do so. However, I also recognize that courts are generally not well equipped to make polycentric choices or to “evaluate the wide-ranging consequences that flow from policy implementation”

 

As a result, the Supreme Court said courts must be modest and humble and “accordingly, courts should exercise considerable caution before intervening in such circumstances.”

 

Discretion

2024 Trip to Eastern Canada, Aboriginal Law, Colonialism

 

There was one tricky issue on the appeal. The Treaties gave the Crown [the government] to exercise its discretion to determine whether or not it had earned enough profits to warrant paying the First Nations, but that did not mean it could exercise that discretion without any parameters. It has to exercise its discretion in a way that aligns with the Honour of the Crown and its constitutional role and its duty to bring about reconciliation. As Justice Jamal said, on behalf of the entire court,

“This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’…in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy…”

 

The Supreme Court also endorsed a law text which said,  ‘a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns.”

 

Therefore, even though the government could exercise its discretion on how much to pay, it can’t pay whatever it wants to pay. It must follow the rules the court set out. It must act honourably in the interests of the First Nations and all of Canada.