A Commentary on Various Aspects of the Restoule Case as it Comes Before the Supreme Court of Canada

On November 7th and 8th, 2023 three legally and fiscally profound and consequential issues will be argued before the Supreme Court of Canada in the nationally important Crown-Indigenous rights case: Restoule vs. Ontario and Canada

-Were the 19th century treaties that Great Britain and Canada entered into with Canada’s Indigenous peoples land surrender agreements or land sharing agreements?

-Should the Limitations Act, 1990 apply to claims by Indian bands against the Crown for money damages allegedly suffered for breach of treaty?

-If a court finds that the Crown has breached one of these treaties, can it order the Crown to pay money damages to the Indian bands?

As to the third question, should the court simply declare that the breach occurred, and leave it to the government, duty bound to act “honourably”, to decide what, if anything, to do about it?  

Or should the court, like in a regular breach of contract case, after finding the government liable, then assess money damages, (which can amount to billions of dollars), and order the government- in effect the Canadian taxpayer– to pay those money damages to the Indian band?

Indian bands argue that prior to and even after the making of the treaties they were and they remain autonomous, self-governing “nations”, each with their own “legal order”, “governance practices”, and “jurisdiction” over their “exclusive territory”, which they “shared” withnot surrendered to– the Crown.  They argue that the treaties their forefathers made with the Crown give rise to permanent “nation to nation treaty relationships”.

In the international forum, when one nation breaches a treaty it has with another nation, the “innocent” nation can rarely bring a lawsuit in a domestic court against the “guilty” nation claiming money damages, (especially in the domestic court of the “guilty” nation). In these situations, nations are diplomatically, and, by custom, immune from such money damages lawsuits. A money damages immunity principle operates. The nations either resolve the dispute diplomatically or militarily, or they don’t.

As history shows us, there’s rarely “justice” in disputes between nation states, where usually some form of “might” makes “right”.

Yet Canadian Indian bands want it different.

They claim independent nationhood status, but within the context of their “nation to nation treaty relationships” with the nation of Canada, they deny that this fundamental, realpolitik money damages immunity principle should apply to them.

Instead, when they make breach of treaty claims against the Crown, they claim not just the right to sue in Canadian domestic courts, but also, as in a domestic breach of contract situation, and despite their self-professed “independent nation” status, they claim the right to be awarded money damages by the court.

The question arises: Why should they have the right to do this? Only citizens and permanent residents have the full right to claim rights against their State.  If they claim to be citizens or permanent residents of “nations” independent of Canada, it follows that they bring into legal question their full Canadian citizenship or permanent resident status, and the full panoply of  rights that flow from that, including automatic access to Canadian domestic courts to sue the government and claim money damages from it: access and judicial relief only normally and automatically available to full-status Canadian citizens or permanent residents.

The Ontario Government is appealing to the Supreme Court a 3-2 decision of the Ontario Court of Appeal narrowly upholding the decision of a Sudbury trial judge finding that Ontario and the federal government are jointly liable for money damages for breaching the 1850 Robinson treaties the government of Canada (as it then was) made with, as they were described in the treaties, the Lake Huron and the Lake Superior “Ojibewe Indian bands or tribes”.

 At the time of the signing of the treaties the combined population of all the Lake Huron bands which resided along the shores of Lake Huron, from modern day Penetanguishene to Sault Ste. Marie, was 1422 persons, “including 200 half-breeds”.  The combined population of all the Lake Superior bands from Batchewana Bay to the American border near present-day Duluth was 1240 persons, “including 84 half-breeds”.  The population of each “tribe or band” averaged about 80 people.

(These constituted “nations”?)

In exchange for ceding and surrendering to the Crown all their interest in the lands covered by the treaties the Indian bands retained reserves, the right to hunt and fish on the surrendered lands, and were promised an annual annuity, which in 1875 was set at $4.00 per band member, and which was paid annually without issue or protest for about 140 years.

Sometime in the 1990’s Huron-Superior band leaders decided that the true meaning of the treaties was different than what the treaties said on their face and what their predecessors’ acquiescent and protest-free conduct had demonstrated.

They decided that instead of the treaties having been land surrender agreements entered into by numerically tiny, clan-based, hunting and fishing bands, they were in fact land sharing agreements entered into by sovereign, independent “nations” with the nation of Upper Canada/Great Britain. They decided that instead of just being entitled to $4.00 per band member per year, the treaties, properly interpreted, entitled each band to an additional periodic, collective lump sum payment representing its purported “fair share” of the ongoing value of and revenues from the lands surrendered.

In essence they were saying that the true meaning and interpretation of the treaties was that they were equal “partners in progress” with the Crown, and that for this entire approximately 150-year period the Crown had wrongfully neglected to pay them their “fair share” of the “partnership” profits.

In about the year 2000 they sued Ontario and Ottawa, claiming an accounting of what that “fair share” is, and then payment of it to them. The case finally came to trial in 2017 and 2018, and in December of 2018 they won a judgment in their favor. 

The trial judge ruled that the treaties were not one-time agreements. Rather, she said, properly interpreted, they were “future-oriented agreements within an ongoing relationship”, which created a “reciprocal relationship between independent entities” involving “shared spaces and resources.” She ruled that when the Indian bands signed the treaties, given their allegedly unique “Anishinaabe perspective and worldview”, they had a “cultural expectation of equal reciprocity,” despite there being no outward indication or talk about this during the treaty deliberations and no wording in the treaties saying this.

In effect she ruled that the treaties were never-ending land and revenue sharing agreements which Canada and/or Ontario had breached, and that, contrary to the money damages immunity principle, the Indian bands were entitled to money damages for the approximately 150 years of missed payments.

She didn’t just declare that the treaties had been broken, and then order Canada and/or Ontario, acting honourably, to do something about it. Instead, she ordered that there be further hearings to calculate the amount of the money damages, if any, and to assess the apportionment of liability between Ontario and Ottawa for those money damages, which would then legally owing and payable to the Indian bands.

In effect she ruled that notwithstanding her finding that the Indian band treaty signatories were autonomous, self-governing “nations”- “independent entities”- each with their own “legal order”, “governance practices”, and “jurisdiction” over their “exclusive territory”, who were and remain in permanent “nation to nation treaty relationships” with the nation of Canada and/or Ontario, the money damages immunity principle did not apply to them.

The writer wrote an extensive description and criticism  of the Restoule trial decision, which is linked to here.

Ontario appealed this decision to the Ontario Court of Appeal. To its everlasting shame, Ottawa, abandoning to the judicial winds its sovereignty interests and the legitimate interests of the Canadian taxpayer,  following what the writer calls Trudeau’s Crown Sovereignty Surrender Directive, did not.

Again, to its shame, and again, contrary to its own sovereignty interests and the legitimate interests of the Canadian taxpayer, in the upcoming hearing before the Supreme Court of Canada Ottawa is supporting the position of the Restoule respondents- these self-professed “independent nations” i.e., independent from Canada. (!)

In the Court of Appeal Ontario argued, amongst other things, that the trial judge had mis-interpreted the annuity clause and the evidence around it. It argued that the plain meaning of the clause, confirmed by 150 years of post-treaties conduct on the part of both the Indian bands and the Crown, was that it only entitled each band member to $4.00 a year, and that that sum had always been faithfully paid, and that therefore there were no arrears owing. It also argued that there was no mandatory obligation to ever increase this $4.00 payment.

In November of 2021 a five-judge panel of the Court of Appeal, by a narrow 3-2 margin, even though it varied important aspects of the trial judge’s ruling, upheld her “perpetual sharing” interpretation of the annuity clause, which, she had ruled, properly interpreted, called for both a collective annuity and a separate individual annuity. The three-judge majority deferred to her strained and speculative, and, with all due respect to her, seemingly biased (see below) interpretation of the evidence in relation to it, and to the treaties generally. They did so on the basis that they could not conclude that she had committed any “palpable and overriding error” in her analysis of the evidence- the relevant appeal court test which must be met in order to overturn a trial judge’s factual finding.

They also ruled that there was a mandatory obligation on the Crown to review and increase the collective annuity.

The two-judge minority, on this central, treaty interpretation issue, said that the trial judge ignored the plain meaning of the annuity clause in her ruling, and wrongly discounted and ignored cogent evidence that made it clear that the common intention of the parties when they made the treaties, and for 150 years after, was that it only called for one annuity of $4.00 per year per band member.

The minority also ruled that while there was an obligation on the Crown to review it periodically, there was no mandatory obligation to increase it, and thus no mandatory, perpetual sharing. The minority ruled, bottom line, that the treaties were in substance surrender agreements, not mandatory sharing agreements, as the majority ruled.

The minority ruled that the trial judge committed a reversible error of law in this regard.

The writer wrote an extensive description and criticism of the Court of Appeal ruling, which is linked to here.

As lengthy litigation procedures unfold, while straining to stay within the bounds of the original pleadings and the evidence adduced at trial, parties often modify, change or re-prioritize their legal arguments. Ontario has done this with respect to the arguments they are now putting before the court of last resort, the Supreme Court of Canada.

Ontario argues in its Supreme Court Factum, (a written summary of its legal positions on all the issues), that the interpretation of the annuity clause by the two-person minority in the Court of Appeal is the correct one. Ontario argues that there was no collective annuity ever payable in addition to the individual $4 per year per band member annuity.

Significantly, Ontario also now concedes that the Crown discretion in the annuity clause to increase the $4.00 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”.

As Ontario argues:

From the perspective of the Anishinaabe the potential to share in the wealth of the Treaty lands was promised to occur through the exercise of ‘Her Majesty’s graciousness” and further possible individual annuity increases, as opposed to any mandatory and unlimited “share” that would be paid through a further collective annuity…The Treaties’ text does not support any agreement to share an unlimited, uncertain amount determined with reference to Crown revenues and relative wealth and needs…The promise to exercise “graciousness” in considering further increases indicates, at a minimum, a requirement to make a decision whether to increase the annuity…The Treaty right is to an exercise of Crown discretion– which is to be exercised honorably in accordance with the Treaty’s purpose. (Italics added.)

In other words, Ontario argues that, while it has a duty to periodically review the sufficiency of the $4.00 per band member annual payment, and to meaningfully engage with the Indian band treaty signatories about it, given all the other calls on government resources- given all the relevant, “polycentric” facts, concerns, fiscal demands and circumstances always facing government- it retains complete discretion as to whether or not to increase it.

 Ontario’s general position in this regard is that the Indian band signatories just have to trust the Crown to do what it in good faith considers from time to time to be honourable conduct in this regard.

In addition to arguing that the lower courts mis-interpreted the treaties, Ontario makes two other major arguments: that the money damages judicial relief granted to the Restoule bands was without legal foundation, and that statute of limitations legislation barred the Restoule bands from being awarded money damages.

The evidentiary trial record and the trial judge’s interpretation of it were both favorable to the Restoule bands. (See below.) It will be difficult for Ontario to convince the Supreme Court to overturn the trial judge’s findings of fact.

But it is completely open to the Supreme Court to reverse errors of law made by the courts below.

 Ontario argues that the failure of the courts below to apply the money damages immunity principle to the Restoule Indian bands was a profound and consequential error of law which must be corrected by the Supreme Court.

Ontario argues that the trial judge, after finding that Ottawa and /or Ontario breached the treaties, only had the power to make a judicial “declaration” of that legally found “fact”, leaving it to these duly elected governments, acting honourably, to decide what they were going to do about it.

As Ontario argues in its Factum:

(The courts below) went too far in conferring on the courts a distributive justice function to review in substantive terms the exercise of the Crown’s discretion to augment. Polycentric considerations, including balancing Treaty augmentation with broad economic and policy issues underlying such considerations including discretionary decisions about the allocation of public resources, are the responsibility of government to be exercised always subject to the upholding of the Honour of the Crown. This permits the court to review the exercise of that discretion to ensure that it has been approached honourably; but not itself assume the government mantle and exercise the promised discretion…This promotes reconciliation more effectively than an order that requires the Court to assume the Crown’s mantle and exercise its discretion under the Treaties by attempting to fashion a blunt damages remedy. A declaration as to the Honour of the Crown, especially under s. 35, is a constitutional declaration and the Court can expect that the Crown will act constitutionally on the advice of the Attorney General…A declaration would also be consistent with the principle that decisions about the allocation of public resources belong to the legislatures and to the executive. (Latter italics added.)

In other words, Ontario is properly arguing that the courts below in Restoule, in failing to restrict their role to “merely” declaring that a treaties breach had occurred- and in failing to apply the money damages immunity principle after declaring the breach of the treaties, and in ordering Canada and/or Ontario to pay money damages to the Restoule bands in amounts to be determined by the courts, wrongfully invaded and then usurped the sole jurisdiction of our duly elected legislatures to, in their discretion, acting honourably, respond as they deem appropriate to the judicially declared breach of treaties, (which, as stated, having regard to Ontario’s bottom line surrender interpretation, could result in the Restoule bands getting nothing.)

Ontario argues in effect that the lower courts in Restoule breached the “separation of powers” doctrine, requiring each branch of government to stay in its own constitutional lane.

It’s shameful and clearly against the public interest that Ottawa is not supporting Ontario’s principled position in this regard, but, sadly for Canada, it’s not surprising, given the current federal government’s heedless and unprincipled giveaway of billions of taxpayer dollars to legally undeserving Aboriginal litigation claimants. Part of this giveaway is the consistent federal   disregard of the government core policy immunity principle in Indigenous lawsuit situations, a variation or iteration of which is the money damages immunity principle.

Ontario’s Limitations Act, 1990 states in effect that a legal action to recover monies owing must be commenced within six years of the arise of the cause of action i.e., the failure to pay the monies properly owing. Failure to commence the action within that six-year period means that the right to pursue legal action in the courts to recover the wrongly withheld monies is statute barred.

As Ontario argues in its Factum:

If, contrary to Ontario’s position, what is at stake in a claim based on breach of a treaty is an adversarial contest about past failure to disburse money, there should be no principled basis to exclude the application of statutes of limitations to such a claim…Ordinary limitations statutes, by their terms, apply to personal remedies claimed in relation to an alleged breach of treaty or an action to account.

In simple words, Ontario argues that the Restoule bands’ lawsuits were started about 150 years too late, and thus their claims for money damages are statute barred.

In their Factums the Restoule Indian bands indignantly disagree with Ontario’s narrowly confined, legalistic, “We have complete discretion. Just trust us to act honourably”, treaty interpretation argument, and with all of Ontario’s other arguments.

They argue that the trial judge correctly interpreted the augmentation clause as a mandatory sharing one, that its breach can and should be remedied by an order for compensation, that “a declaration is an insufficient remedy for the 150 years of neglect of the treaty promise”, and that Ontario’s Limitations Act does not apply to claims for breach of an Indian treaty.

Following the lead of the trial judge, their overall position confidently asserts what is in fact a highly contentious, only recently conceived, “Indigenous perspective and worldview” approach to the treaties and places the Robinson treaties squarely at center of it.

They argue that:

This case is about upholding the nation-to-nation Treaty relationship between the Anishinaabek and the Crown, recognized and renewed by the Robinson Huron and Robinson Superior Treaties of 1850 (the Treaties) with particular reference to the Crown’s promise to share the wealth through augmented annuities if it could do so without incurring loss. Treaties arise from the intersection of common law and Indigenous legal orders and must be understood in light of the law and governance practices of both parties, the history of the Crown-Indigenous relationship and the specific historical circumstances existing at the time of the treaty. The trial judge found, based on the totality of evidence before her, that sharing the wealth of the territory on an “if and when” basis through increases to the annuity was always central to both parties understanding and intention. That finding was based on the text of the Treaties, and a detailed analysis of the historical context and the parties’ intentions, including those of the Anishinaabek as informed by Anishinaabe law. Ontario’s appeal asks this Court to set aside the trial judge’s extensive findings about the parties’ intentions and adopt an interpretation of the Treaties that completely ignores the Anishinaabe perspective and is wholly inconsistent with the historical context and the mutuality inherent in Crown-Indigenous treaties as sacred and solemn agreements. (Italics added.)

With further reference to Indigenous “legal orders” and giving “equal weight to the Indigenous perspective” the Restoule respondents argue that the Supreme Court should defer to the trial judge’s sharing interpretation of the annuity clause and dismiss Ontario’s appeal. Not to do so, they argue, would give Ontario “a virtually unfettered and unreviewable discretion regarding whether and how much to increase the annuity”, and would “privilege unilateral Crown actions and perpetuate an ongoing injustice.”

They characterize the Restoule bands as treaty “partners” of Canada and/or Ontario.

But can this really be the case? The Robinson treaties, like all the treaties signed across Canada in the 19th century, is clearly a surrender of sovereignty and lands agreement. One fact amongst many that illustrates this is the fact that Indigenous signers agreed that even their reserves would be held in trust for them by the Crown and any sale of any part of reserve land would only be sold “by order of the Superintendent-General of the Indian Department for the time being.”

How can the Restoule bands claim to be “sovereign, “independent entities” and “partners” of the Crown when they promised to seek the Crown’s permission to do something so fundamental-in terms of the concept and practice of sovereignty and independence- as deal with their own reserve land?

Even now “First Nation” bands are almost wholly dependent on the Canadian taxpayer for their economic survival. One of the richest bands in Canada, the Osoyoos Indian Band, in its 2021-2022 fiscal year still received over 53% of its annual revenues from the Canadian taxpayer.

The Restoule bands re-iterate that their breach of treaty legal claim “does not sound in contract”, but rather, as stated, is “about upholding the nation-to-nation Treaty relationship between the Anishinaabek and the Crown.”

Raising ahistoricism and romantic abstraction to a high art and arguing that the Supreme Court must accept it as truth and rule accordingly, they speculatively argue:

There is no evidence that in welcoming the Crown into their sacred relationship with creation, the Anishinaabek intended to completely restructure the relationship from one of equals into one of complete imbalance. The Anishinaabek would never have intended a relationship where one Treaty partner was instantly subjugated to the unilateral and unfettered discretion of the other. In fact, the Anishinaabek legal obligations to their territory, and the creatures within it, precluded them from agreeing to disempower themselves in this way.

The uncontroverted evidence supports the finding that the Anishinaabek would have understood the Treaty relationship to be one where decisions about the territory and increasing the annuity would be made on the basis of deliberation and consensus. When and if consensus proved impossible, they would have expected the parties to develop mutually respectful mechanisms to resolve any dispute on a nation-to-nation basis. That work, which should have been ongoing for the last 170 years, on only now getting started.

Describing Canada and/or Ontario as “historically dishonourable Treaty partner(s)”, they argue that “the honour of the Crown requires that courts be able to hold the Crown meaningfully to account, including, where appropriate, through coercive remedies.” That is, by awarding money damages, which, they argue, “will allow the parties to put the past behind them and begin to work together to build a respectful Treaty relationship,” and will “repair the unique relationship between the parties, restore the honour of the Crown, and achieve reconciliation.”

This flowery and unctuous Restoule language gives the false impression that treaties are one-way streets in terms of promises and obligations, all flowing from the Crown to the Indian bands.

 In fact, a Crown-Indigenous treaty is a two-way street, representing a reciprocal exchange of “solemn” and “sacred” promises made by each side to the other. In recent years First Nations have become notorious for illegally blocking roads and rail lines and thumbing their noses at injunctions. In the Prairie treaties the Indians solemnly promised “to conduct and behave themselves as good and loyal subjects of the Queen” and “obey and abide by the law”.

 Having this in mind, would the Restoule bands acknowledge and agree that if the Crown can be held liable in money damages for treaty breaches, then the Indian band treaty signatories can also be held liable for money damages as well for their treaty breaches?

Probably not.

Stating the issue in this “shoe on the other foot” way highlights the policy reasonableness of Ontario’s argument in this regard.

As to the Restoule bands’ false assertion that Canada and/or Ontario have been “historically dishonourable treaty partners”, it is galling and distasteful to read this, even in a legal pleading where over-the-top assertions are commonplace.

In fact, the forefathers of present day non-Indigenous Canadians were by and large honourable and decent people, and, having regard to the brutal norms of history, they were, vis a vis Indigenous peoples, de facto conquerors with a conscience.

Nor were the Indigenous peoples of what is now Canada ever paragons of pre-Fall innocence, as dreamily depicted in the Restoule trial and in the Restoule Factums before the Supreme Court. They were more the violent, imperialistic conquerors amongst themselves than the Euro-Canadians ever were towards them.

In addition, as to this “historically dishonourable treaty partners” calumny and blood libel, Canadians, acting through their federal and provincial governments, the titular heads of which are the respective, entirely fictive “Crowns”, are, and have always been, again, judging by world standards and historical norms, racially decent and caring people.

Since the 19th century treaties with the Indians of Canada were signed they have, through their parliaments, sensibly and honourably preferred to deal with the obvious inflation factor-problem inherent in the treaties – ($4.00 will barely buy you a cup of coffee at Starbucks)- pursuant to their proper “Honour of the Crown” duty to Indigenous Canadians, (really, it should be called the “Honour of the Canadian people” doctrine), by granting to them numerous necessary and life-enhancing benefits, most of which are not called for or required by any treaty.

Canadian taxpayers provide to Indigenous Canadians 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 and loan guarantees, housing assistance grants and loan guarantees, programs 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 the various associations and federations (like the Assembly of First Nations) that make up such a large and vocal part of the lobbying sector of the “Indian Industry”, (see below), funding urban Friendship Centers, and funding money-losing movies and television programs romantically focusing on Indigenous Canadians.

In addition, with their new “consult and accommodate” de facto veto power granted to Indian bands by the Supreme Court of Canada, all Indian bands in Canada are now able to demand and extract “impact benefit agreements” from any nearby resource project proponent as the price of securing their non-interference, consent and cooperation. These agreements are worth millions of dollars to these Indian bands. The cost of these projects has to rise accordingly, which costs are eventually passed on to and paid by all Canadians.

Professor Emeritus Tom Flanagan of the University of Calgary writes that the current federal government has increased spending on Indigenous peoples from $11 billion in 2016 to $29 billion for 2023, an increase of about $18 billion, representing a percentage growth of 156%. This increase in Indigenous spending, almost none of which is called for by any treaty, is over twice as fast as the increase in overall federal spending since 2015.

The federal government, through its new UNDRIP Action Plan and related legislation, ruinously proposes to “Indigenize” as much as federally-controlled Canada as it can, which will entail even more profligate borrowing for and spending on Indigenous peoples by the Canadian taxpayer.

Some historically dishonourable treaty partners!

Canadians have always acted more than honourably towards Canada’s Indigenous peoples!

The Restoule bands, if Ontario’s appeal is denied, seemingly plan to keep all of the above types of payments and benefits, offering Canadian taxpayers no credit or setoff in relation to them, and then simply add to these payments and benefits the substantial windfall they will derive from their lawsuit. This will create a situation of unjust enrichment, and if the Restoule bands acquiesce in this, it will be they who will be the dishonourable treaty partners.

As to Ontario’s Limitations Act argument, the Restoule bands respond:

Treaty rights are unique in their source, their scope and the imperative of reconciliation they embody. The suggestion that limitations statutes can, or should, capture claims based on sui generis Aboriginal rights has attracted considerable criticism. Reconciliation is not promoted by time limits on legal action that perpetuate injustice by denying Indigenous peoples access to the courts. Many of the policy rationales underlying limitations statutes simply do not apply in an Aboriginal context where reconciliation must weigh heavily in the balance.

(The “Honour of the Crown” and “Reconciliation”: the enduring catch-all words, always there to be used by Indigenous elites to escape the burden of being subject to general laws that bind all non-Indigenous Canadians and create a common world for us… catch-all words always there to ensure that their people remain forever “separate but equal”, like the oppressive state of post-Civil War American Blacks, and in a perpetual civically infantile state.)

In the Restoule trial numerous age-old legal conventions, practices and protocols designed to ensure the appearance of a fair and impartial trial were jettisoned by the trial judge, all of which was acquiesced in by Ottawa’s and Ontario’s lawyers.

In my respectful opinion the Restoule trial proceeding was an example of our courts no longer being seen to be impartial in Indigenous- related cases.

This concern is added to and will be a civically unhealthy and unspoken factor in the hearing and disposition of this very appeal, because of the recent appointment to the Supreme Court of the Indigenous, former Ontario Superior Court of Justice Judge, Madam Justice Michelle O’Bonsawin.  

She was appointed to the Supreme Court only because she is Indigenous. (This is a terrible, affirmative-action-like burden that the irresponsible and race-obsessed Trudeau government has rashly placed on this thoroughly decent person.)  As a lawyer she had no trial experience. She was only a Superior Court Judge for a short time and made no particular mark there. Justice O’Bonsawin was raised and educated in an urban, middle class, Franco-Ontarian milieu in Sudbury, Ontario. Her only “real life” connection to anything day-to-day “Indigenous” appears to be that she has Abenaki relatives on the Odanak reserve in Eastern Quebec.

Her appointment has been hailed by Indigenous rights advocates as one that will add an individual to the Court who will be able “to interpret Canadian laws through an Indigenous lens.” In an interview after her appointment she said that Indigenous legal traditions “will inform her perspective.”

Given that the specifics of the Indigenous “lens” and “legal traditions” are always more just spoken of than explained, are not really known or understood, and are arguably mythical, the whole situation around her appointment to the Court further calls into question the objectivity and impartiality of the law in Indigenous-related cases.

The Judge appointed to the Supreme Court before her, in 2021, is Justice Mahmud Jamal, a “person of colour” and a Bahai. There was no talk of a “person of colour” or Bahai “lens” or “legal traditions” around his appointment. That there was such talk around Justice O’Bonsawin’s appointment highlights this disturbing trend towards Indigenous exceptionalism permeating our justice system.

Ottawa’s lawyers, following Trudeau’s Directive aimed at promoting “reconciliation” at whatever cost, (linked to above), only limply defended the Restoule trial action. Ontario’s lawyers were similarly ineffective, seemingly unwilling, for fear of being accused of “fighting too hard” and thus not promoting “reconciliation”, to object to any of the unusual and unprecedented things that happened throughout the trial, which to an impartial observer, gave rise to a reasonable apprehension of bias and pre-judging on the part of the trial judge.

The judge allowed an eagle staff, purportedly a symbol of Indigenous sovereign “nationhood”, government, spirituality and perspective, the distinct existence of all which were trial issues, to be erected in the well of the Queen’s courtroom, alongside the usual symbols of the Queen’s sovereignty and the Queen’s justice.

During the trial she dined with the litigants and their lawyers on one of the reserves, thereby violating English lawyer and essayist Francis Bacon’s 400-year-old admonition to lawyers: “And let not the counsel at the bar chop with the judge”.[i]

During the trial she participated in a smudging ceremony on one of the reserves.

Ottawa and Ontario made no objections to these calculated maneuvers on the part of the Restoule lawyers to massage the trial narrative in their favor.

Nor did the Court of Appeal comment on them, one way or another.

 She used modern, “progressive” terminology to describe people and places, terminology that was unheard of in 1850 and not found in any of the historical documents referred to at trial: “Nations” and “First Nations” for Indian bands or tribes, “Anishinaabek” for Ojibewe, “Bawating” for Sault Ste. Marie.

(Again, not objected to by Ottawa’s and Ontario’s lawyers, and not commented on by any of the Court of Appeal judges. This anachronistic misuse of terminology continues on the part of all parties into the Supreme Court of Canada deliberations. What a coup for the Restoule lawyers! Controlling the terminology in a lawsuit is highly favourable to controlling its outcome.)

She described the trial as an exercise in “reconciliation” instead of just a …trial. She closed her Reasons for Decision with “Migwetch, Migwetch, Migwetch”.

Crown lawyers offered no objections and no counter-narrative to the Restoule bands’ assertions that in 1850 they were not tiny, paleolithic, clan-based, hunting and fishing “bands or tribes” with only the most fragile and tenuous possession and control of their manifestly under-occupied “territory”, but rather were politically sovereign “nations” in full occupation and control of the vast lands-  their “exclusive territory”-  about which they were deliberating, which at the time were treating on an equal basis with the nation of Upper Canada/Great Britain.

They offered no objections and no counter-narrative to the Restoule bands’ assertions that they had political, nation-like “governance practices” and “legal orders” and that there was such a thing as a distinct “Anishinaabe perspective and worldview” about clearly worded, translated and explained agreements, which “Anishinaabe perspective and worldview” somehow differed from a normal human perspectiveand worldviewon these clearly worded, translated and explained agreements.

(By 1850 the “Ojibewe tribes and bands” had, for the previous 200 years, interacted socially, culturally, commercially and very intimately, (as evidenced by the significant number of “half-breeds” in the Crown population count), such that, the trial judge concluding that their “worldview” was fundamentally different from that of their non-Indigenous treaty counterparts simply defies human experience and common sense.)

In every respect Ottawa and Ontario’s lawyers  let the Restoule bands establish and run with their romantic, simplistic and highly questionable “Indigenous perspective and worldview” narrative, (now reflected in the Restoule bands’ Supreme Court Factums), which the trial judge completely bought into, to the effect that the treaties were products of international-like treaty negotiations between sovereign, independent, political nations of equal status and power, but of such profoundly different cultural “perspectives” and “worldviews” that in effect there could not have been a true meeting of the minds.

It’s a basic assumption underlying our Euro-Canadian justice system that the determination in a court case of anything approximating “truth” depends upon all the adversarial litigants involved fighting as hard as they can with all their relevant evidence put before the court, with tough, fearless and fair cross-examinations and by making every legal argument that advances their cause.

This didn’t happen in the Restoule trial, where politics, ahistorical fantasy, abstraction and sentiment governed, so no approximation of objective “truth” came out of it.

Nonetheless, based on the evidence put before the court- evidence not objected to by Ottawa’s and Ontario’s lawyers, and thus, as properly argued by the Restoule bands in their Supreme Court Factums, more or less “uncontroverted”- and thus evidence they (and Canadians) are stuck with- a procedurally valid and proper ruling did come out of the Restoule trial.

As stated above, the Restoule trial evidence which the Supreme Court will be considering creates a narrative favorable to the Restoule bands’ case and presents a major hurdle for Ontario to get over in order for its appeal to be successful.

As stated, Ontario must convince the Court that both the trial judge and the Court of Appeal made errors of law in their interpretation of the treaties and the evidence around the making and performance of them.

This is t                           This is the only way for Ontario to both escape the consequences of its excessive politeness and timidity at trial on evidentiary matters, and bail Ottawa, the Canadian taxpayer and Canada generally out of the disastrous consequences of Ottawa’s willful and disgraceful refusal to fight this serious case. Because, as to the latter, if Ontario loses this appeal, then the floodgates will be opened, and every Indian band whose ancestors signed a treaty with the Crown will be suing to have their treaty re-opened on the same false, sentimental “Indigenous perspective and worldview” basis, and will be claiming billions of dollars of retroactive damages from the Canadian taxpayer, as the Restoule bands are claiming. Canada will become further divided along race lines and the prospect of any kind of real and meaningful “reconciliation” will worsen accordingly.

It’s a universally accepted fact that Canada’s Indigenous peoples are at the bottom of almost every performance-measuring social and economic indicator. Amongst them, the suicide rate, the poverty  rate, the rate of alcoholism and drug dependency, the rate of criminality, incarceration and recidivism, the rate of educational and economic achievement, the rate of child abuse and neglect leading to the highest rates in Canada of children in government care- all such grim rates and measures of human health and welfare- clearly demonstrate that the status quo, centered on pouring Canadian taxpayer money into the reserve system, is inflicting Indigenous peoples with an unconscionable amount of human suffering.

A win by the Restoule bands in the Supreme Court may result in more taxpayer monies pouring into the Robinson treaties reserves, but it will do absolutely nothing to ameliorate these tragic, harrowing, unconscionable social conditions and improve the lives of the vast majority of the vulnerable and marginalized Indigenous Canadians who live on them. Decades of experience has proven that to be the case. Only the Indigenous elites and their Indian Industry[ii] apparatchiks will benefit, and only in a short term and ephemeral way.

For the rest, the money will be like treating bone cancer with expensive band aids.

The  segregationist, “separate but equal” Indigenous House in Canada sits on the ancient, outdated, rotten foundations of reserves and the Indian Act, and more recently, of section 35 of the Constitution Act, the last as so disastrously interpreted by the Supreme Court of Canada. Now joining these, to add to the further ruination of the Indigenous House are Justin Trudeau’s termite-like UNDRIP initiatives.

All Canadians must join together in raising this House, removing and replacing these rotten, infested foundations, and then gently lowering the House onto new foundations, the concrete-like core of which must be the rebar principle of equality under the law.

Nelson Mandela wrote in his biography, Long Walk to Freedom, that the very first step on the road to reconciliation is the complete dismantling of apartheid.

In Canada Samuel de Champlain’s dream was that “our French young will marry your Indigenous daughters and henceforth we shall be one people.”

Former Manitoba Minister of Northern Affairs, Jerrie Storie, wisely wrote:[iii]

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 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 their Indigenous law rulings, has relentlessly frustrated Nelson Mandela’s, Champlain’s and Jerrie Storie’s enlightened, universalist, “one people” dreams and aspirations, and let down the causes of Canadian racial unity and equality under the law.

The Court owes the very many Canadians who embrace these universalist dreams and aspirations a ruling that will signal its intention to do more in its future rulings to bind Canadians together instead of binding us apart– a ruling that will finally give Canadians some small hope that Nelson Mandela’s, Samuel de Champlain’s and Jerrie Storie’s goal and vision of one law for all races in the country might not be beyond the realm of reason and possibility after all.

Allowing Ontario’s important and meritorious appeal in the Restoule case would be such a ruling.

Peter Best

French River, Ontario

August 9, 2023


[i] From his essay, Of Judicature, contained in The World of Law- The Law as Literature, Edited by Ephraim London, Simon and Schuster, New York, 1960

[ii] “Aboriginal citizens must also squarely face the Industry of Non-Aboriginal Hucksters, and “consultants” and those Aboriginal politicians who are openly profiting from this sea of despair and poverty. In spite of what they say, this “Indian Industry” has no real interest in changing a system from which they are profiting.”- Indigenous writer Calvin Helin, in Dances with Dependency, Ravencrest Publishing, Woodland Hills, California, 2008

[iii] Letter to the Editor, We are all treaty people, The Globe and Mail, October 29, 2016

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