Supreme Court Must Close Restoule Decision’s Open Floodgates

On December 21st, 2018, the Ontario Superior Court of Justice, in its unprecedented, de-stabilizing Restoule vs. Ontario and Canada decision, where all these causes came into play, ruled that Canada and Ontario […]
Published on March 13, 2024

On December 21st, 2018, the Ontario Superior Court of Justice, in its unprecedented, de-stabilizing Restoule vs. Ontario and Canada decision, where all these causes came into play, ruled that Canada and Ontario were liable- 50-50- to pay to 21 rent-seeking Ontario Indian bands a share of all the revenue that Ontario has received – possibly going back to 1875– from all sales, leases and licenses of Crown lands, less Ontario’s expenses incurred in selling, regulating and collecting that revenue.

The trial judge, based on what she found was the Restoule bands’ “Indigenous perspective and worldview,” of which sharing was a principal feature, which she further found, governed their understanding and interpretation of the true nature of the treaties, that the treaties were land-sharing agreements rather than land surrender agreements. She concluded with this point even though it was contrary to the clear wording of the two 1850 Robinson treaties, and contrary to 150 years of established, mutual “surrender” practices.

The annuity clause in the treaties compels the Crown to pay an annuity of $4 to each Restoule band member. A further clause states that the $4 might be increased from time to time, as “Her Majesty may be graciously pleased to order.” This unique augmentation clause, (none of the other treaties discussed below have one), was a main basis of the trial judge’s “sharing” ruling.

Ontario appealed the trial judgment, but Canada did not.

The Ontario Court of Appeal, by a close 3-2 majority upheld the trial judgment.

The minority in the Court of Appeal ruled that the wording of the treaties was clear and should be respected. These two justices argued that treaties were surrender agreements, not mandatory sharing agreements, which the majority in the Court of Appeal let stand.

The minority ruled that the augmentation clause was entirely discretionary on the Crowns’ part. They used the words and phrases “unreasonable,” “distortion,”  and “pure speculation” on the judge’s  interpretation in relation to alleged motivation and events at the time of the making of the treaties and described her interpretation of the treaties as “strained and illogical.”

Ontario argued at the Supreme Court of Canada that the interpretation of the annuity clause by the two-person minority in the Court of Appeal is the correct one, and that, in any event, the trial judge only had jurisdiction to declare that the treaties had been breached, leaving it to Ontario and Canada to negotiate a resolution with the bands. Ontario argued that the trial judge did not have authority to declare a treaty breach and issue a monetary damages award.

Ontario foolishly conceded at the Supreme Court that the Crown discretion granted by the augmentation clause to increase the $4 from time to time, as “Her Majesty may be graciously pleased to order,” is “not unfettered and is subject to the Honor of the Crown.” It conceded that while there is a duty to periodically review the sufficiency of the $4 per band member annual payment, and to meaningfully engage with the Indigenous band treaty signatories while considering all the other calls on government resources, the government keeps discretion as to whether or not to increase the amount beyond $4.

 Prior to the November 2023 hearing by the Supreme Court, Ontario and Canada inexplicably settled the claim for past damages, only with the Lake Huron bands. The settlement amount was $10 billion. (The lawyers got $50 million.) The Huron bands continue to pursue their claims for future monetary damages. The Superior bands, not parties to the settlement, supported their claim for both past and future monetary damages.

 As of now, Canadians await the Supreme Court of Canada decision.

 In my 2019 article on the trial decision, I wrote, referring to the Restoule trial decision:

 This decision will create a precedent for every other treaty in Canada to be challenged on similar “Indigenous perspective and worldview” grounds. Other treaty challengers will similarly say, if they think it to their advantage: “We didn’t and don’t understand our Treaty in the same Euro-Canadian way you did. We want our treaty reviewed and renewed. We want to keep the non-treaty honour payments and benefits we get, plus, we now want our collective share of the value of the lands we agreed to share with you, retroactive to when our forefathers signed the Treaty.

 The concern I had has now come to pass. The rent-seeking, copycat lawsuits, all based in one way or another on what this writer sees as a factually baseless “Indigenous perspective” are proliferating.

In Ontario, 10 Treaty 9 bands have sued Ontario and Canada, claiming that, as in Restoule, despite the clear wording of the Treaty, the signators to the treaty never intended to surrender their interest in the lands to the Crown, or to, without their consent, give the Crown the right to “take up” lands for settlement and resource development.

A group of Manitoba 1871 Treaty 1 bands, citing Restoule, has now sued Ottawa for $11 billion, claiming that their $5 annuity payment was never enhanced or indexed to inflation as it  ought to have been. For example, the Lake for keeping the $5 annuity payments to Treaty 2 treaty members “frozen in time” for nearly 150 years. In addition, Waywayseecappo First Nation Chief Murray Clearsky is seeking class-action status for his claim against the federal government, filed on Jan. 26, 2024. He alleges that the Crown breached its obligations under Treaty 4 by keeping the $5 annuity payments to treaty members the same since the agreement was signed in 1874, allegedly “causing the purchasing power of the annuities to dwindle to the point where it became only a token or symbolic sum.” Finally, the Fisher River Cree Nation wants class-action status for its lawsuit against the federal government alleging that the $5 annuity payment paid to Treaty 5 First Nation members over the last 148 years violates the agreement because the payment does not keep up with inflation.

The Indigenous argument is that the $4 or $5 annuity payment is “insulting”. One Indigenous litigant said that it should now be somewhere near $9000 per year for each entitled recipient.

All these rent-seeking lawsuits are fueled by  the Restoule trial decision, Canada’s irresponsible decision not to appeal it, (based on the Trudeau government’s formal, presumptive policy to cave and surrender in the face of rent-seeking, Indigenous lawsuits), the Trudeau government’s embracing  the state and economy-damaging UNDRIP, and the inexplicable, premature $10 billion giveaway settlement.

The Indigenous elites are bringing these rent-seeking lawsuits forward deliberately giving the false impression, with no pushback from the Trudeau government, the Ontario government, or the legacy media,  that the $4 or the $5 annuity payment is all the Indigenous people receive from Canada.

The opposite is the case.

Compared to non-Indigenous Canadians, Indigenous peoples receive  on a per capita basis more than $9000 a year.

Mark Milke wrote in his book, The Victim Cult- How the Culture of Blame Hurts Everyone and Wrecks Civilizations, about government spending on Indigenous peoples:

The per-person rate of increase rose from $922 per registered First Nation individual in 1950 to $9012 by 2012, or a ten-fold increase in real adjusted terms per person. That was spending on aboriginal Canadians in place of other federal spending available to them but in addition to it. On that, and by comparison, federal government spending on all Canadians (with inflation accounted for) grew five-fold between 1950 at $1504 per person then to $7316 by 2012. In other words, spending within that envelope specific to aboriginal Canadians rose even more dramatically than spending on all Canadians.

Canadian taxpayers provide Indigenous people with free medical care, free dental care, massive grants for reserve operations and infrastructure, funding for schools, grants for students enrolled in post-secondary education, special business start-up loans and loan guarantees, housing assistance grants and loan guarantees, grants for indigenous youth and women, employment initiatives, funds for Indigenous land claims lawsuits, funds for the bulk of their “consult and accommodate expenses,” funds for their various associations, like the Assembly of First Nations, and much more.

To illustrate with one example in education,  funding for elementary and secondary education, in the 2010/11 school year, amounted to $13,524 per student, on average, compared with $11,646 per student in provincial public schools across the country.

In addition, with the “consult and accommodate” de facto veto power granted to First Nations by the Supreme Court of Canada  with the Supreme Court aboriginal title ruling for British Columbia, and with UNDRIP, First Nations are now able to demand, and receive, “impact benefit agreements” from nearby resource projects as the price of securing their consent and cooperation. These agreements are worth billions of dollars to these bands.

Finally, Canadians have paid over $60 billion (and counting) to Indigenous groups to finance the Trudeau government’s craven and unprincipled settlement of many reparations lawsuits. This figure could end up as high as $76 billion.

In sum, Professor Emeritus Tom Flanagan of the University of Calgary writes that the Trudeau government has increased annual spending on Indigenous peoples from $11 billion in 2016 to $29 billion in 2023.

The federal government, through its new UNDRIP Action Plan and related legislation, proposes to “Indigenize” much of Canada which will entail even more borrowing for Indigenous peoples.

Virtually none of these payments are required by any treaty.

They are all voluntarily provided by the government, largely paid for by non-Indigenous Canadians.

Obviously, a $4 or $5 treaty annuity payment is inadequate for funding Indigenous people. This amount never made sense from the late 19th century on, And that is why the additional billions per year have been paid by Canadian governments over many decades.

So far, non-Indigenous Canadians are receiving no acknowledgment for the many billions of dollars of benefits provided to Indigenous peoples which do not have to be paid by any treaty or Aboriginal rights legislation.

The Restoule case and the rent-seeking that has sprung from it, is a grave threat to the sovereignty of our country, the rule of law, our economy, and to the tax revenues of the governments.

For this reason, the Supreme Court should overturn the Court of Appeal’s decision in Restoule and adopt the minority’s view that the treaties mean what the wording says: the treaty lands are surrendered to the Crown, with no residual Crown “sharing” obligation.

Otherwise, Canada will have continuing legal chaos and economic harm, and the Indigenous groups will be unjustly enriched at the expense of non Indigenous taxpayers. Unfortunately, the legal chaos with probably increase social and racial division between Indigenous and non-Indigenous Canadians, causing our liberal democracy to decay further.

 

Peter Best is a retired lawyer who lives in Sudbury, Ontario. He is the author of There Is No Difference- An Argument for the Abolition of the Reserve System, which has been endorsed by retired Supreme Court of Canada Justice Jack Major.

 

 

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