In its July Restoule decision the Supreme Court of Canada, with the support of the Trudeau Liberal government (“Canada”) and the Province of Ontario (“Ontario”), continued its relentless attack on the sovereignty of our elected governments, our social unity and legal equality, and Canadian taxpayers.
With respect to the future interpretation of the Robinson treaties, the Supreme Court ruled that the Crown has a duty to consider, from time to time, whether it should increase the present $4 annuity. If it decides to increase the amount, it must use discretion in deciding by how much. The Crown’s discretion is not unfettered; it is to be exercised “liberally, justly, and in accordance with the honour of the Crown.”
With respect to the issue of how to deal with past breaches of the treaties, the Supreme Court ruled that Canada and Ontario must pay an “honourable” and “substantial” amount of compensation to the Robinson Superior treaty Aboriginals for 150 years of allegedly breaching the treaty, which will be “subject to review by the courts.”
The Court’s order to these governments was, in my view, an improper prejudgment of the basic issue of whether any amount was warranted, because the treaty stipulated that an increase in the annuity would only be justified “if the ceded lands produce[d] an amount that would allow the Crown to increase the annuities without incurring a loss.” Of course, figuring this out requires an extensive factual enquiry.
The Court’s ruling that it would set the amount of compensation if the parties could not quickly agree on an honourable amount was made despite the Court’s acknowledgment that it is poorly equipped to conduct financial analyses and to evaluate the wide-ranging social, political, and economic consequences that would flow from their decision.
In my respectful opinion, the Court’s ruling was not just an inappropriate prejudgment of the compensation issue, but more seriously, a breach of the separation of powers doctrine, part of which is the law that constitutionally valid legislation which enacts core government policies, with the exception of Charter matters, is immune from judicial interference.
But in this case, both Canada and Ontario made it especially easy for the Court to trample on what should be entirely within the discretion of the legislative branches of Canada and Ontario. In fact, Canada, betraying its obligation to defend its own sovereignty and the public purse, sided with the Aboriginal litigants during the multi-year legal process.
And, late in the case, Ontario inexplicably reversed its earlier positions and admitted that for 150 years it had breached the annuity clause, even though it was untrue. Given that during the 150-year period, Canada only had the responsibility to administer treaties with Aboriginals, the reason for Ontario to make this irresponsible, legally questionable, and expensive admission is a mystery.
The Supreme Court’s ruling was made easier because before the case was heard, both Ontario and Canada wrongly agreed to settle out of Court with the Robinson Huron Aboriginal litigants for $10 billion for alleged past damages. Of course, this settlement was seen by the Supreme Court as a public admission that the treaty was, in fact, breached by both the provincial and federal governments.
The dollar amount of this agreement illustrates just how “substantial” the Supreme Court expects the “honourable” Superior settlement should be.
The population of the Huron bands, numbering only 1,422 in 1850, totalled 29,296 Aboriginals in 2017 on and off their reserves, which makes each Aboriginal’s share of the Huron settlement worth about $340,000 tax-free.
The population of the Superior bands, numbering only 1,240 in 1850, totalled 13, 546 in 2017 on and off their reserves. Based on the Huron calculations, each Superior Aboriginal would expect about the same amount.
These amounts, however, are underserved because they are based on the false premise that $4 per year for 150 years is all that these Aboriginal litigants ever received from the Crown. In coming to its decision, the Court ignored the wider Crown-Aboriginal historical and financial relations.
Mark Milke writes in The Victim Cult- How the Culture of Blame Hurts Everyone and Wrecks Civilizations, that in 2012 government spending on Aboriginals was $9,012 per individual compared to $7,316 per non-Aboriginal. The spending surplus of almost 25 percent in favour of Aboriginals has, in fact, increased since 2012.
Canadian taxpayers provide Aboriginals with free medical and dental care, massive grants for reserve operations and infrastructure, funding for schools and education, grants for post-secondary education, special business start-up loans and loan guarantees, housing assistance and loan guarantees, special programs for youth and women, employment initiatives, funds for land claims lawsuits, funds for “consult and accommodate” expenses, grants and low interest loans to enable them to acquire equity positions in resource projects, and funds for various associations, from Friendship Centres to the Assembly of First Nations, and much more.
As well, Canadian taxpayers have paid or will pay well over $80 Billion in lawsuit settlements to Aboriginal peoples for what Professor Tom Flanagan calls Reparations by Stealth.
The Supreme Court wrongly declared that Canada and Ontario, representing the collective will of the Canadian people, “dishonourably breached its sacred promises” to the First Nations in the Robinson Treaties. It also said that Canada and Ontario also showed “a persistent pattern of indifference” to them, and an “abject failure” in its “egregious and longstanding breaches” and so made a “mockery” of those promises.
None of these statements are true.
The evidence at trial was that both parties engaged in conduct that showed they both believed, regardless of changing times and circumstances, that only $4 per year per individual was owed under the treaties. As well, the evidence showed that the Crown had a reasonable and good faith belief that it was not breaching the treaties, that the $4 allotment was the proper legal amount to be paid, and that there was no obligation to increase the payment.
The Supreme Court’s declarations about dishonourable, untrustworthy treaty behaviour are wrong, and they constitute an insult to Canadians, whether legislators, civil servants, or ordinary citizens, who, over the years, have dealt honourably and generously with the Huron-Superior bands.
Because of the obvious inadequacy of $4 per year, the Crown, supported by ordinary Canadians, adopted a voluntary, alternative, generous, non-treaty ameliorative measures to make up for the obvious inadequacy of the $4 per year treaty obligation.
Thus, ordinary Canadians, through their legislators and civil servants, over many decades have made payments of many billions of dollars to Aboriginal peoples, as Milke and Flanagan show, so that they received more from Canadian governments per capita than non-Indigenous Canadians.
Frankly, this is why, as the trial evidence showed, the Huron-Superior bands never asked that the $4 annuity be increased over this extended period. They were getting that increase in other, voluntary, non-treaty ways.
Therefore, the Crown must consider these billions of dollars of payments in the calculations that the Court ordered Canada and Ontario to make to the plaintiffs. This decision would be consistent with the Court’s ruling, and it would be in accordance with common sense and fairness.
To not consider these billions of dollars of voluntary non-treaty payments would result in double recovery and unjust enrichment for the Aboriginal plaintiffs, which are classic common law principles used by courts in calculating damages or reducing or even eliminate damages.
In my respectful opinion, not $10 billion, not even $1, is owed to any of the Aboriginal litigants in the Restoule case, and that should be our elected governments’ position with both past damages still to be calculated and future amounts allegedly owed to the Aboriginal litigants, both in this case, and in the numerous “copycat” cases that are being pursued across the country.
There are no winners coming out of the Supreme Court’s Restoule decision. Canada and Ontario have lost more of their sovereignty.
Much dissension and many social problems will occur caused by the enormous sums of unearned money being paid. For example, lawyers are already fighting with some of their clients over the excessive $510 million legal fees. Those lawyers will lose their most precious asset, their reputations.
The Supreme Court will suffer a loss of trust by many citizens. Ontario and Canadian taxpayers will see their taxes increased to pay for these unjust settlements.
Finally, paying these undeserving amounts of taxpayers’ monies to the Restoule litigants will result in resentment from non-Aboriginal Canadians, which is not the feeling that is required for true reconciliation to take place. Reconciliation will regress, and Canada will harden further into a race-based state.
It seems clear, at least to me, that the Supreme Court’s Restoule decision is a tragedy for all of Canada.
Peter Best is a retired lawyer who practiced law for over 40 years in Sudbury, Ontario. He is the author of There Is No Difference, which argues for the phasing out of the Aboriginal reserve system.
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Read: Supreme Court Must Close Restoule Decision’s Open Floodgates, March 13, 2024
