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.”