On November 7th and 8th , 2023, several important legal and fiscal issues will be argued before the Supreme Court of Canada in the Crown-Indigenous rights case: Restoule vs. Ontario and Canada.
The main issue is whether the 19 th century treaties that Great Britain and Canada entered with Indigenous peoples were land surrender or land sharing agreements.
First Nations bands have argued that their people were, and remain, autonomous, self-governing “nations,” each with its own “legal order,” “governance practices,” and “jurisdiction” over their “exclusive territory,” that they “shared with,” but did not surrender to, the Crown. They argue that the treaties they signed with the Crown give rise to permanent “nation to nation treaty relationships.”
Sometime in the 1990s, the Huron-Superior First Nation band leaders decided that the true meaning of the treaties their ancestors signed in 1850 was different from the original wording of the treaty itself.
They maintained that instead of the treaties having been land surrender agreements, they were land sharing agreements entered into by sovereign, independent “nations.” They also maintained that instead of being entitled to just $4.00 per band member per year, the treaties, properly interpreted, entitled each band to a collective lump sum payment being a “fair share” of the value of the land and the revenues from the surrendered land.
In essence, as they successfully argued at trial, the true, legitimate interpretation of the treaties was that they were equal “partners” with the Crown, and that for approximately 150-years the Crown had neglected to pay them their “fair share” of the “partnership” profits from the land and resources.
This is the main issue that will be argued at the Supreme Court of Canada.
The judge in the first court case ruled that the treaties were not one-time agreements, but properly interpreted, “future-oriented agreements within an ongoing relationship,” that created a “reciprocal relationship between independent entities” involving “shared spaces and resources.” She also ruled that when the Indian bands signed the treaties, given their unique “Anishinaabe perspective and worldview,” they had a “cultural expectation of equal reciprocity,” despite there being no talk about this during the treaty discussions and no corresponding wording in the treaties themselves.
Ontario appealed this decision to the Ontario Court of Appeal, but Ottawa did not appeal the decision. Thus, Ottawa abandoned her sovereignty interests and the legitimate interests of the Canadian taxpayer following what I call “Trudeau’s Crown Sovereignty Surrender Directive.”
Surprisingly, contrary to its own sovereignty interests and the interests of the Canadian taxpayer, in the upcoming Supreme Court of Canada case, Ottawa is supporting the Restoule respondents, the self-professed “independent nations.”
The two-judge minority in the Court of Appeal said that the trial judge ignored the plain meaning of the treaty in her ruling and incorrectly ignored evidence that clearly implied that the intention of the parties when they signed the treaties, and for 150 years after, was that it only called for one annuity payment of $4.00 per year per band member.
The minority ruled that the treaties were surrender agreements, not sharing agreements as the majority ruled.
Ontario argues in its Supreme Court Factum (a written summary of its legal positions on all the issues), that the interpretation of the treaties by the two person minority in the Court of Appeal is the correct interpretation.
Ontario also argues that there was no collective annuity payable to each band and no sharing obligation in addition to the $4.00 per year per band member. Another issue to be argued at the Supreme Court arises because of Ontario’s Limitations Act, that says that legal action to recover monies owing must begin within six years of the failure to pay the monies owing. Failure to begin action within the six-year period means that the right to pursue legal action is barred. In this regard, Ontario argues that the Restoule bands’ lawsuits were started about 150 years too late, and for this reason their claims for the damages awarded by the trial judge are barred.
The bands argue, on the other hand, that the Limitations Act does not apply to First Nations because of the “honour of the Crown” doctrine. In their appeal documents, the bands argue that Canada and/or Ontario have been “historically dishonourable treaty partners.” But the British and Canadian colonialists were, by and large honourable people, and in the norms of the day, they were.
For decades Canadian taxpayers have provided Indigenous Canadians with free medical care, free dental care, massive grants for reserve operations and infrastructure, funding for schools, grants for post-secondary education, special business start-up loans, housing assistance grants, programs for indigenous youth and women, employment initiatives, funds for Indigenous land claims, funds for “consult and accommodate expenses,” funds for the various associations and federations (such as the Assembly of First Nations), funding for urban Friendship Centers, funding for the production of movies and television programs, and many more programs.
In addition, with the new “consult and accommodate” right granted to First Nation bands by the Supreme Court of Canada, these bands can extract “impact benefit payments” from nearby resource projects to secure their non-interference, consent, and cooperation in the projects. These payments are worth millions of dollars to these bands, and the cost are paid by all Canadians.
In this respect, Professor Emeritus Tom Flanagan of the University of Calgary writes that the federal government has increased spending on Indigenous peoples from $11 billion in 2016 to $29 billion in 2023, an increase of $18 billion representing an increase of 164%. This increase, almost none of which is called for by the treaties, is more than twice the increase in the total federal government spending.
The federal government, through its new UNDRIP Action Plan and related legislation, proposes to “Indigenize” as much of federally controlled Canada as it can, which will entail even more profligate spending on Indigenous peoples by Canadian taxpayers.
In their Factums, the Restoule bands offer no credit to Canadian taxpayers for the many billions of dollars of voluntary payments and benefits that have already been provided in the past.
If Ontario loses this case at the Supreme Court, then the floodgates will be opened, and every First Nation whose ancestors signed a treaty will be suing to have their treaty re-opened on the same “Indigenous perspective and worldview” and “sharing” basis. No doubt, the bands will claim billions of dollars in retroactive damages from Canadian taxpayer, as the Restoule bands are now claiming. In fact, some Prairie First Nations have just started such a copycat lawsuit. If these lawsuits are decided in favour of the First Nations, Canada will become further divided along race lines and the prospect of any kind of real and meaningful “reconciliation” will become much more difficult.
The segregationist, “separate but equal” Indigenous claim is based on the ancient, outdated, foundations of reserves and the Indian Act, and more recently on Section 35 of the Constitution Act, that has been so disastrously interpreted by the Supreme Court of Canada. Now to add to the ruination of Canada is Justin Trudeau’s UNDRIP initiative.
It is time for all Canadians to join in replacing the infested foundations, and then to construct a new foundation based on the principle of equality under the law for all citizens.
Nelson Mandela wrote in his biography, Long Walk to Freedom, that the first step on the road to reconciliation is dismantling apartheid. We have an apartheid system in Canada, and it needs to be dismantled. Samuel de Champlain’s dream was correct when he said, “our French young men will marry your Indigenous daughters and henceforth we shall be one people.”
Some years ago, former Manitoba Minister of Northern Affairs, Jerry Storie, wisely wrote:
We governments and First Nations, are captives of our past. We are indeed all treaty people, and it is time to revisit our treaties. Tying our collective futures to communities with no chance of jobs and opportunity is unfair to not only this generation of young people, but also to future generations. The social dysfunction in First Nation communities cannot be fundamentally changed with money. People need jobs and hope. Our political leaders, both First Nations and at all levels of government, need the courage to rethink our treaty relationship for the good of First Nations youth.
Over the past 25 years the Supreme Court of Canada, in its Indigenous law rulings, has relentlessly frustrated Nelson Mandela’s, Champlain’s, and Jerry Storie’s enlightened, universalist, “one people” dream and undermined the causes of Canadian racial unity and equality under the law. Now, this Court owes Canadians who embrace this universalist dream, probably the majority of Canadians, a ruling that will bind Canadians together instead of driving us apart.
Without a doubt, Canadians are owed a Supreme Court ruling that will give Canadians some small hope that Nelson Mandela’s, Samuel de Champlain’s, and Jerry Storie’s vision of one law for all races might be possible.
Allowing Ontario’s important and meritorious appeal in the Restoule case would be such a ruling. It would be a win for all Canadians, including all First Nations.
Peter Best is a retired lawyer living in Sudbury, Ontario. He is the author of the book, There Is No Difference- An Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians. (thereisnodifferfence.ca). An expanded version of this article can be read at thereisnodifference.ca.