The Supreme Court of Canada (“SCC”) has released its long-awaited decision in Ontario (Attorney General) v. Restoule, 2024 SCC 27 (“Restoule”). The SCC unanimously concluded that that the Crown had “dishonourably breached its sacred promises” under the Robinson-Superior and Robinson-Huron Treaties (“Robinson Treaties”) for nearly 150 years. Restoule is the most important SCC decision on treaty interpretation since the SCC’s seminal decision in R v. Marshall [1999] 3 SCR 456.
I. Background
In 1850, the Anishinaabe of Lake Huron and Lake Superior entered into land cession treaties with the Crown. The treaties contained an “Augmentation Clause,” according to which perpetual annuity payments were to be increased over time if the ceded lands produced profit that would allow the Crown to increase the annuity without incurring loss. Under this clause, that amount was not to exceed the equivalent of $4, but the Crown had the discretion to increase it. The annuities have been $4 since 1875. In 2001 and 2014, the Anishinaabe of Lake Superior and Lake Huron, respectively, both filed claims seeking declaratory and compensatory relief relating to the interpretation, implementation, and alleged breach of the Augmentation Clause. Neither Canada nor Ontario disputed that they are in longstanding breach of the annuity promises.
The appeal before the SCC concerned the proper interpretation of the Augmentation Clause, the Crown’s obligation to fulfill that clause, and the appropriate remedy for the Crown’s breach of the Treaties.
II. Summary of SCC Decision
The SCC allowed Ontario’s appeals in part, dismissed the plaintiffs’ cross-appeals, and issued a declaration about the rights and obligations under the Augmentation Clause. The SCC declared that the Crown’s failure to diligently fulfill the Augmentation Clause was a dishonourable breach of the Robinson Treaties. Under the augmentation clause, the Crown has the duty to periodically consider whether it can increase the annuities without incurring loss. If the economic circumstances permit, the Crown must exercise its discretion as to whether to increase the annuities and, if so, by how much. In carrying out these duties, the Crown must act in a manner consistent with the honour of the Crown, including the duty of diligent implementation. The Crown’s discretion must be exercised diligently, honourably, liberally, and justly. Its discretion is not unfettered and is subject to review by the courts.
The SCC determined that the full range of remedies is available for this breach. While the plaintiffs were entitled to a declaration clarifying the rights and obligations of the parties, they were also entitled to damages, given the longstanding and egregious nature of the Crown’s breach. Having already reached a negotiated settlement concerning past breaches with the Huron plaintiffs, the Crown was directed to engage in a time-bound and honourable negotiation with the Superior plaintiffs about compensation.
III. Key Conclusions
The Honour of the Crown Is Not a Cause of Action but Can Generate Various Duties
The SCC affirmed that while the honour of the Crown is a powerful constitutional doctrine, it “is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled.”[1] At the same time, it is “not a mere incantation, but rather a core precept that finds its application in concrete practices”, and “gives rise to different duties in different circumstances.”[2] The specific duties flowing from the honour of the Crown depend “heavily” on the context in which that honour is engaged.[3]
Fiduciary Duty vs. Honour of the Crown
The SCC found that with respect to the Augmentation clause, the Crown was not subject to an ad hoc or sui generis fiduciary duty.[4] However, in accordance with the honour of the Crown, there is a duty to diligently implement Treaties, and this duty is not only procedural.[5] It would not be enough for the Crown to simply “consider” increases above the $4 cap from time to time.[6]
The Standard of Appellate Review for Treaty Interpretation
The SCC affirmed that the interpretation of historic Crown-Indigenous treaties is reviewable for correctness. Correctness review is mandated for treaty interpretation because of the precedential and constitutionally protected nature of treaty rights and because treaties engage the honour of the Crown. The SCC also confirmed the two-step framework for treaty interpretation and outlined the underlying goals and principles of treaty interpretation, in line with the law established by R. v. Marshall, [1999] 3 S.C.R. 456.[7]
Crown Immunity and Limitations
On the issue of Crown immunity and limitations, the SCC concluded that no statutory limitation period precluded the claims for breach of the Robinson Treaties, and that it was not necessary to consider Crown immunity. The breach of treaty claims are not statute‑barred by Ontario’s 1990s Limitations Act because they are neither “actions on the case” nor “actions of account.” The SCC’s findings are based on the unique provisions of Ontario’s limitations statutes and should not be read as a blanket endorsement that treaty claims are not subject to limitations periods. For example, see Shot Both Sides v. Canada, 2024 SCC 12[8] where the SCC confirmed the six-year limitation period for Treaty claims under Alberta’s relevant limitations statute.
IV. Discussion
This decision confirms that the Crown’s discretion regarding how it meets its Treaty obligations, including compensation for treaty commitments, “is not unfettered,” as Ontario argued. Rather, the Crown’s discretion must “be exercised, liberally, justly and in accordance with the honour of the Crown,” and its decision is reviewable by the courts.
The SCC interpreted and applied Ontario’s limitations legislation when considering the plaintiff’s claims and determined that no statutory limitation period prevented the claims for breach of the Robinson Treaties. Therefore, this decision is specific to equitable claims for treaty breach in Ontario. This is significant considering the recent decision in Shot Both Sides where the SCC did not address the constitutionality of applying limitations statutes, specifically Alberta’s Limitation of Actions Act, 1970, to Aboriginal rights and treaty claims. In Shot Both Sides, the SCC found that the Blood Tribe’s Treaty Land Entitlement Claim was statute‑barred by operation of the applicable six‑year limitation period under the Alberta legislation.
Restoule is also notable for the Court’s recognition of the Anishinaabe interpretation of the Robinson Treaties, as not merely transactional instruments, but as living agreements that are based on the values of respect, responsibility, reciprocity and renewal. The decision highlights the importance of respecting Indigenous interpretations and the role this can play in advancing reconciliation. As the SCC noted “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.”[9]
Moving forward, Restoule clarifies that Courts can hold the Crown accountable for its ongoing failure to uphold and diligently implement its Treaty promises. First Nations seeking redress for these breaches are not limited to declarations and may seek other forms of relief, such as compensation. An important consideration for First Nations will be whether or not the relevant limitations legislation in their jurisdiction applies to their potential claims.
[1]Ontario (Attorney General) v Restoule, 2024 SCC 27 at para 220 [Restoule], citing Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para 73 [Manitoba Metis].
[2] Ibid., at para 220, citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at paras 16 and 18 [Haida Nation].
[3] Ibid., at para 220, citing Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at para 24; Manitoba Metis, at para 74; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, at para. 25.
[5] Ibid, at para 256.
[7] R. v. Marshall, [1999] 3 S.C.R. 456.
[8] Shot Both Sides v. Canada, 2024 SCC 12, at para 32 [Shot Both Sides].
