The Restoule-created floodgates have opened. The Supreme Court of Canada Must Close Them.

Political decay is besetting Canada today.

Some of the causes include identity politics, institutional inertia and rent-seeking Indigenous groups seeking, and being ceded, control of public policy and resources.

On December 21st, 2018, the Ontario Superior Court of Justice, in its unprecedented, de-stabilizing Restoule vs. Ontario and Canada decision, where these causes all came into play, ruled that Canada and Ontario were liable- 50-50- to pay to 21 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 sharing, 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 this even though it was contrary to the clear wording of the two 1850 Robinson treaties in issue, and contrary to 150 years of established, mutual “surrender” practice and behaviour.

The annuity clause in the treaties obligates 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” (“the augmentation clause”). The 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. Canada, endorsing and personifying the causes of political decay listed above, did not.

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

The minority in the Court of Appeal ruled that the wording of the treaties was clear and should be respected. The treaties were in substance surrender agreements, not mandatory sharing agreements, the trial judge’s finding 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” (of the treaty language), “pure speculation” on the trial judge’s part (in relation to some alleged motivations and events at the time of the making of the treaties) and described her interpretation of the treaties generally 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, acting in accordance with the honour of the Crown, to negotiate a resolution with the bands. Ontario argued that the trial judge did not have jurisdiction to issue a monetary damages award in addition to declaring a treaty breach.

Ontario foolishly conceded at the Supreme Court that the Crown discretion granted by the augmentation 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”. It conceded 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 Indigenous 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.

Prior to the November 2023 hearing of arguments 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 claim $50 million.) The Huron bands continue to pursue their claims for future monetary damages. The Superior bands, not parties to the settlement, maintain their claim for both past and future monetary damages.

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.”

This has now come to pass. The rent-seeking, copycat lawsuits, all based in one way or another on what this writer submits is the factually baseless “Indigenous perspective and worldview” argument, are proliferating. More may come.

In Ontario, 10 Treaty 9 bands have sued Ontario and Canada, claiming that, as in Restoule, despite the clear wording of the Treaty, they 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.

In New Brunswick two groups of First Nations, the Wolastoqiyik and the Mi’kmaq, are claiming title to almost the entire Province, saying, after 250 years of not saying it, that their respective titles to what are now New Brunswick public lands were never surrendered or extinguished when their distant ancestors signed treaties with the British in the 1700s, which treaties clearly purported to do just that.

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 allegedly ought to have been.

Lake Manitoba First Nation is taking the federal government to court for keeping the $5 annuity payments to Treaty 2 treaty members “frozen in time” for nearly 150 years.

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 the Crown breached and continues to breach its obligations under Treaty 4 by keeping the $5 annuity payments to treaty members the same since the agreement was first 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.”

Fisher River Cree Nation wants class-action status for its lawsuit against the federal government, which alleges the $5 annuity payment paid to Treaty 5 First Nations over the last 148 years violates the agreement because the payment doesn’t keep up with inflation.

The general, totally misleading, Indigenous line given to partially justify these annuity cases 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 a combination of the improvident Restoule trial decision, Canada’s unconscionable and irresponsible decision not to appeal it, (based on the Trudeau government’s formal, presumptive policy to cave and surrender in the face of all such rent-seeking, Indigenous lawsuits), the Trudeau government’s legislative embrace of the state and economy-damaging UNDRIP, (now officially blessed by the Supreme Court of Canada’s statement in its recent Indigenous child welfare decision that UNDRIP is “incorporated into the country’s domestic positive law”), and the inexplicable, premature $10 billion giveaway settlement.

The Indigenous elites bringing these lawsuits, from Restoule forward, deliberately give the false impression, with no pushback from governments or from the somnolent legacy media, (more institutional inertia), that the tiny annuity payment is all they get from Canadians, and that they are otherwise left completely on their own to somehow survive.

The opposite is the case.

Compared to non-Indigenous Canadians Indigenous peoples are prospering at the hands of our governments. On a per capita basis they are already getting more than the above-mentioned $9000 a year.

Writer 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 to Indigenous bands and organizations 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 their various associations, like the Assembly of First Nations, and much, much more.

To cite one example in education, national on reserve funding in education, in the 2010/11 school year amounted to $13,524 per student compared to $11,646 per student, on average, in provincial public schools across Canada.

In addition, with the “consult and accommodate” de facto veto power granted to First Nations bands by the Supreme Court of Canada, with the Supreme Court aboriginal title ruling for British Columbia, and with UNDRIP, First Nations 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 billions of dollars to these bands. The cost of these projects has to rise accordingly, which costs are eventually passed on to and paid by all Canadians.

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

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” as much as federally controlled Canada as it can, which will entail even more borrowing for and spending on Indigenous peoples by the Canadian taxpayer.

Virtually none of these Indigenous payments and programs are required to be made or provided by any treaty.

They’re all voluntarily provided by non-Indigenous Canadians. Why?  Because we are and always have been honourable and decent people. Just as Canada is and always has been an honourable and decent country.

Obviously, a $4 or $5 treaty annuity payment is inadequate. It never made sense from the late 19th century on. That’s partly why these billions per year have been paid by Canadians over the past many decades: to fairly, decently and honourably make up for this inadequacy.

In all these cases, either within the contexts of the lawsuits or outside the context of them, non-Indigenous Canadians are getting no acknowledgment of or credit for these many billions of dollars of benefits and programs provided by them to Indigenous peoples, which, it must be emphasized, are not required to be paid or provided by any treaty or aboriginal right. Canadians have only received accusations and blame. This is wrong, grossly unfair and creates resentment.

The Restoule case and the rent-seeking, copycat cases that have sprung from it represent a grave threat to the sovereignty of our elected governments, the rule of law, the workings of our economy and to the desperately needed tax revenue of our governments.

The Supreme Court of Canada must overturn the Court of Appeal’s majority decision in Restoule and adopt the minority’s view that the treaties, as acted upon without protest for 150 years, mean what the wording clearly says they mean: the treaty lands are surrendered to the Crown, with no residual Crown “sharing” obligation.

Our governments must vigorously defend these Restoule-based, rent-seeking, copycat lawsuits.

Otherwise, there will be continuing legal chaos and economic harm in the land, and the Indigenous groups engaging in these lawsuits will be unjustly enriched at the expense of non-Indigenous taxpayers. This will increase social and racial division in the country and cause our liberal democracy to further decay.

Peter Best

February 14, 2024

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