THE SUPREME COURT OF CANADA’S RESTOULE DECISION INSULTS PAST AND PRESENT NON-ABORIGINAL CANADIANS AND UNJUSTLY ENRICHES ABORIGINAL BANDS

(For brevity’s sake and to avoid repetition of facts and arguments previously made, the writer assumes the reader has read his previous articles on this seminal case, all of which are under the heading Restoule v. Ontario and Canada, atthereisnodifference.ca.)

By its July 26th, 2024, Restoule decision, the Supreme Court of Canada  , with the support of the Trudeau Liberal government (“Canada”), and in this case, the Province of Ontario (“Ontario”),  continued its relentless attack against the sovereignty of the Canadian Crowns, Canadian social unity and legal equality, the Canadian taxpayer, and against all non-Aboriginal Canadian people, past and present.

Just this year, in February, contrary to longstanding law centering on the “best interests of the child” trumping all other considerations in child welfare situations, the Supreme Court endorsed ill-equipped Aboriginal communities taking over Aboriginal child welfare administration and endorsed granting to those communities preferential quasi-property rights in at-risk Aboriginal children.

In March the Court stripped 1.8 million Aboriginal Canadians of their rights under the Canadian Charter of Rights and Freedoms on their home reserves and territories.

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 can increase the present $4 annuity without incurring loss. If it decides that it can, it must exercise its discretion and decide whether to do so and 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”.

Only time will tell how these vague directions from our highest court will play out.

With respect to the issue of how to deal with past  breaches of the treaties, the Supreme Court ruled, based on totally ahistorical, faulty and insulting reasoning, that the Crown must determine and pay an “honourable” amount of compensation to the Robinson Superior treaty plaintiffs for 150 years of admitted breach of the treaty annuity clause in the treaty, which determination will be, as ruled by the Court, “subject to review by the courts”.

(The Robinson Huron treaty plaintiffs had already settled out of court on this issue. See below.)

The Supreme Court relied on Canada having basically sided with the arguments of the Aboriginal plaintiffs, and encouraged by that, it rejected Ontario’s feebly put-forward argument, based on the separation of powers doctrine, that the Court should not award money damages to be paid by Ontario, but rather only make a declaration of treaty breach, leaving it to Ontario to honourably negotiate a settlement with the Aboriginal plaintiffs.  

Basically making new law, the Court ruled that the Crown can be liable in money damages for breach of a treaty.

With respect to the calculation of these damages in this case, the Court ruled that the Crown “must exercise its discretion and increase the annuities with respect to the past”, and that if it did not so in the “honourable” fashion as ultimately, if required,  determined by the Court, then, on the basis that “the Crown has lost the moral authority to simply say “trust us” (to determine the honourable amount), the Court itself would “set the amount to be paid by the Crown”, which amount, the Court added, should be “substantial.”

The Court’s order to the Crown to determine and pay a “substantial” amount to the Superior plaintiffs was an improper prejudgment of one of the basic issues in the case i.e. whether any amount at all was warranted,because  the treaty provision was to the effect 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 loss”. Determining this involves an extensive factual enquiry.

The Court’s ruling that it would set the amount of compensation itself if the parties couldn’t quickly negotiate and agree on an “honourable amount”- a judicial gun pointed at the heads of Canada and Ontario – was made despite the Court’s acknowledgments that:

 “A court…must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary” … “The amount by which the Crown might increase the annuity is a polycentric and discretionary determination that will inevitably reflect many social, economic, and policy considerations that may change over time, affecting the frequency and nature of net revenue and annuity calculations. Determining the amount of compensation owed for the past will involve similar considerations…. Courts are generally not well equipped to make polycentric choices or to evaluate the wide-ranging consequences that flow from policy implementation”. (Italics added)

Illustrating just how poorly equipped the courts would be to make these polycentric choices, the Court listed a few of the myriad, complex, factual enquiries and considerations that would have to be made:

Although this is by no means an exhaustive list, the court should consider the following factors when reviewing the amount that the Crown sets: (a) the nature and severity of the Crown’s past breaches, including the Crown’s neglect of its duties for close to a century and a half; (b) the number of Superior Anishinaabe and their needs; (c) the benefits the Crown has received from the ceded territories and its expenses over time; (d) the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada; and (e) principles and requirements flowing from the honour of the Crown, including its duty to diligently implement its sacred promise under the treaty to share in the wealth of the land if it proved profitable”.(italics added)

In my respectful opinion the Court’s ruling in this regard constitutes not just an inappropriate prejudgment of a crucial factual issue by the Court, but more seriously, an unjustified judicial overreach and breach of the separation of powers doctrine, part of which is the constitutional convention that the making and implementation of core government policies by the legislative branches of government, with the exception of Charter matters, are immune from judicial interference.

But Canada and Ontario made it especially easy for the Court to trample on what should be entirely within the ultimate discretion of the legislative branches of Canada and Ontario.

As shown in my previous articles, Canada, betraying its fundamental obligation to defend its own sovereignty and the public purse, basically sided with the Aboriginal plaintiffs throughout the entire multi-year litigation process of this case.

And, at the Supreme Court level, Ontario inexplicably reversed its previous positions and admitted the untrue fact that for 150 years it had breached the annuity clause. In this regard Ontario had its lawyer abjectly tell the Court during argument:

 “We are listening, and you are going to tell us how to approach this”.

(Given that during this 150-year period it was solely Canada that has had the constitutional power and responsibility to enter into and administer treaties with Aboriginals, the rationale for Ontario making this untrue, irresponsible, legally devastating and very expensive concession is a scandalous mystery.)

The Supreme Court’s rulings in this case were also made easier for it to make by the fact of Ontario and Canada, before the arguments had even taken place at the Supreme Court, settling out of Court with the Robinson Huron plaintiffs for $10 billion dollars for past damages, (leaving the issue of future damages to be determined by the Court.)

To the Court the fact of this settlement represented a joint, public admission of treaty breach liability. As the Court said:

“All parties have agreed that an increase to the annuity in respect of the past is required. This acknowledgment is reflected in the $10 billion settlement recently reached between the Huron plaintiffs, Ontario and Canada for past breaches of the augmentation promise”.

The dollar amount of this Huron settlement illustrates just how “substantial” the Supreme Court expects the “honourable” Superior settlement amount should be.

The population of the Huron bands, numbering only 1422 in 1850, according to Statistics Canada presently totals about 29,296 Aboriginals, on and off reserve, making each Aboriginal’s share of the Huron settlement monies approximately $334, 000, tax-free, before legal fees, (in relation to which their lawyers are claiming $510 million.)

 The population of the Superior bands, numbering only 1240 in 1850, presently totals about 13, 546 Aboriginals on and off reserve. Based on the Huron numbers each Superior man, woman and child can reasonably expect the same individual settlement.

These numbers, based on “damages” allegedly suffered over a 150-year period, posit present-day Huron and Superior Aboriginals receiving amounts mainly referrable to damages largely not suffered by them, but allegedly suffered by generations of long-dead persons. Live persons cannot in law collect damages suffered by dead persons. But that is what is crazily happening here.

These compensation amounts are obscene, irrational and underserving because they are based on the entirely false premise that $4.00 per year for 150 years is all the plaintiff Aboriginals ever got from the Crown. In ordering that they be paid the Court completely ignored the wider context of Crown-Aboriginal historical relations and ignored Canadian history itself.

Writer Mark Milke writes in his book, The Victim Cult- How the Culture of Blame Hurts Everyone and Wrecks Civilizations, about government spending on Aboriginal 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 not 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 Aboriginal bands and organizations free medical care and dental care, massive grants for reserve operations and infrastructure, funding for schools and all forms of primary and secondary education,  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”, grants and low interest loans to enable them to acquire equity positions in resource projects, funds for their various associations, like the Assembly of First Nations, and much, much more.

Canadian taxpayers through the Canadian state have paid well over $60 BILLION to Aboriginal peoples over the last 20 years for what Professor Tom Flanagan calls Reparations by Stealth.

The Supreme Court wrongly and insultingly declared that the  Crown, embodying and representing from time to time the collective will of the Canadian people, for almost 150 years “dishonourably breached its sacred promises” made to the First Nations bands in the Robinson Treaties, showed “a persistent pattern of indifference” to them, and, by its “abject failure” and its “egregious and longstanding breaches” in this regard over this long period, made a “mockery” of those promises.

It further declared that the Superior bands “have been waiting almost a century and a half for their treaty entitlement” but the Crown has “ignored their calls, describing the Crown, and by extension the Canadian people, as “patently unreliable and untrustworthy” and an “historically dishonourable treaty partner” which has “neglected its sacred treaty promises”.

The Court wrote that the Crown reduced the Robinson Superior treaty to “an empty shell of a promise.”

This is all hogwash.

None of this represents a fraction of reality.

None of this was testified to by any witnesses at trial. (See the writer’s original article about the trial.)

There was no evidence of Aboriginal “calls” or “waiting” or of conscious “neglect” or “indifference” on the part of the Crown.

The evidence at trial was that both parties engaged in a pattern of mutual treaty performance conduct that showed that they both reasonably believed, regardless of changing times and circumstances, that only $4 per year per individual was owed under the treaties.

The evidence showed that the Crown, throughout most of the treaty performance period, possessed an innocent, reasonable and good faith belief that it was not breaching the treaties, that $4 was always the proper legal amount to be paying and that there was no legal obligation to periodically review it and possibly increase it.

The Supreme Court declarations about dishonourable, untrustworthy Crown treaty behaviour are wrong and egregiously insulting. They constitute undeserved insults to all past and present Canadians, whether legislators, servants or agents of the Crown or not, who have all been, in totality, more than honourable “treaty partners” with the Huron-Superior bands.
Because of the obvious inadequacy of $4 per year per Huron-Superior Aboriginal, generations of honourable and decent Crown servants, agents and legislators, supported by generations of honourable and decent Canadians, adopted honourable and decent ameliorative measures to make up for that patent inadequacy.

And they –we– non-Aboriginal Canadians have fully made up for it.

Rather than go through difficult, time-consuming and inefficient treaty amendment negotiations with countless Aboriginal bands across the country, past and present generations of Canadians and their Crown servants and legislators have reasonably and honourably chosen to make up for it by the more expeditious and efficient means of making voluntary provisionnot mandated by any dated, limiting and inflexible treaty– of billions and billions of dollars of payments, “reparations” and benefits to Aboriginal peoples to the extent that, as Messrs.  Milke and Flanagan show, and as everyday experience shows, individual Aboriginal Canadians over the recent decades, have received more from taxpayers and governments than non-Indigenous Canadians have received.

This is why, as the trial evidence showed, the Huron-Superior bands during most of the 150-year treaty performance period never asked that the $4 annuity be reviewed and increased. That’s because they were getting that increase in other, non-treaty ways.

The Court in Restoule made much of the treaty-signing Aboriginals’ values and expectations of “mutual assistance” and “reciprocity”-the latter the idea that the Aboriginal treaty signers expected that their ceding of the lands covered by the treaties would be reciprocated by the receipt of consideration of equal value.

They have received such consideration, but not through the treaties, the limited and inflexible nature of which, as stated, made this impossible.

Rather they have received such consideration, and they have received the Crown’s share of “mutual assistance”, as stated, necessarily outside the ambit of the treaties, by the provision of these multi-billions of dollars of voluntary payments, reparations and benefits.

The Court in Restoule properly pointed out that the treaties were essentially agreements between peoples -Aboriginal and non-Aboriginal peoples.

In this regard the Court said:

“…A treaty is a compact not only among the (governments) and founding peoples, but also between the non-Aboriginal population and Aboriginal peoples…Seen from this perspective, a court’s interpretation of an historic treaty has extensive normative reach…Unlike ordinary contracts, treaties…(which are) nation to nation agreements… have a broader public, political role as foundational documents that establish the bases of relations between Aboriginal peoples and the larger Canadian community.”

The Canadian people, treaty partners with the Huron-Superior Aboriginal people, through their elected representatives, by their past and ongoing voluntary and honourable provision of these substantial payments, reparations and benefits to them, have fully honoured and fulfilled the Huron-Superior Aboriginals’ expectation of fair reciprocity and assistance.

As a final point on this, the Court in Restoule said that the list of factors for the Crown to consider when directing its mind to whether the annuity should be increased is “by no means exhaustive”. The Crown is to consider all reasonable and relevant factors.

Therefore, the Crown must consider these billions and billions of dollars of voluntarily and honourably made payments, reparations and benefits in the calculations which the Court has ordered the Crown to do to come up with an “honourable” amount to pay the Superior plaintiffs. This would be consistent with the Court’s ruling and would accord with common sense and fairness.

To not consider them would result in betterment, unjust enrichment and double recovery on the part of the Aboriginal plaintiffs, all classic common law concepts that are always employed by courts in damages calculations to, where appropriate, reduce and even in some cases eliminate damages otherwise owed, the latter of which should be the case here.

In my respectful opinion, for these reasons, not $10 billion, not $4.5 billion, not $1 is owed to any of the Aboriginal plaintiffs in the Restoule case, and that should be the Crown’s position in this case going forward with respect to both the remaining issue of past damages to the Robinson Superior bands and the issue of future amounts owing to all the plaintiff bands.

Paying these obscene and undeserving amounts of taxpayers’ monies to the Restoule plaintiffs in these circumstances results in feelings of resentment on the part of non-Aboriginal Canadians, which is the opposite of the kind of feelings necessary to promote reconciliation.

I make two other points.

In my original article on the trial, I voiced my disapproval of the trial judge having departed from many of the usual rules of judicial decorum, which I argued (and still believe) created an appearance of bias and partiality in favour of the Aboriginal litigants.

The trial judge held court on some of the plaintiff First Nations reserves, where, after court, she participated in sweat lodge, pipe and smudge ceremonies, “immersed herself in the teachings of these communities’ many knowledge keepers” and partook in “feasts” with the litigants and their lawyers, the last in violation of Francis Bacon’s over 400 year-old warning to lawyers in Of Judicature: “And let not the counsel at the bar chop with the Judge”.

She permitted symbols of Aboriginal spirituality and purported sovereignty to be erected in the well of her various courtrooms. She engaged in these and similar activities on the basis that, in her view, it was appropriate and necessary because the trial was not a standard trial, where such events would never happen because they clearly violate basic judicial ethics, but rather, it being an Aboriginal rights trial, it was “a procedure of respect and an exercise in reconciliation”, and so, in her view, exempt from complying with basic ethical standards for judges.

The Supreme Court of Canada appears to have approved this unprecedented judicial conduct for Aboriginal rights cases.

The conduct in this case, better described in terms of ethical and legal standards,  included hearing and relying upon unsworn, out-of-court statements, viewing and relying upon out-of-court ceremonial demonstrations of aspects of Aboriginal culture, (the existence and nature of which was a live issue in the case), socializing and “chopping” during trial with witnesses and lawyers, and permitting symbols of governments other than Canada’s to be erected in His Majesty’s courtrooms.

In this regard, in the context of discussing appellate court deference to trial court findings of fact, the Court said:

“The trial judge’s sensitive trial process and deep engagement with Indigenous treaty partners undoubtedly made her better situated than an appellate court to decide factual matters, including the historical context in which the Robinson Treaties were signed and the credibility and reliability of witnesses”.

The Supreme Court’s implicit approval of this unprecedented and otherwise unethical judicial conduct- describing  it as being “sensitive” and “deeply engaged with Indigenous treaty partners” when a main duty  of judges presiding over trials is not to engage with the litigating parties at all, except in the courtroom- continues this Court’s divisive and demoralizing tendency to, in Aboriginal rights cases, show partisanship in favor of Aboriginal litigants and their issues.

Finally, on a somewhat positive note, the Restoule decision seems to have resolved the issue of whether the historical treaties made between the Crown and Aboriginal bands are in substance land surrender agreements or, as the trial judge found, in substance land “sharing” agreements.

Aboriginal leaders and activists, relying on the trial judge’s decision in Restoule, are now claiming in numerous copycat, rent-seeking lawsuits that despite the clear wording of the historical treaties, they are all land sharing agreements entitling them to a share of the “profits” from the shared land.

Based on what the trial 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, she ruled 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, and contrary to 150 years of established, mutual “surrender” practice and behaviour.

In my view the Restoule Supreme Courtdecision supports the view that the historical treaties are land surrender agreements. In my view the Supreme Court overruled the trial judge on this issue.

The Court in Restoule described its treaty interpretation duty as having to:

“…interpret the scope and content of constitutionally protected rights and obligations that embody the very conditions on which pre-existing Indigenous peoples agreed to share their most precious gift- the land itself- with newcomers”.

This quoted sentence is the only one in the entire text of the decision that uses the word “share”. But it uses the word illogically, because one does not “share” a gift. By the very nature of a gift, one gives it. The donor of the gift cedes or surrenders the property interest in it to the recipient of it.

The Restoule Court’s frequent use of the word “cede”- a key word in all the historical treaties- supports my conclusion in this regard.

In Restoule one reads the terms and phrases “ceded territories”, “released or ceded”, “despite ceding these lands”, “the Anishinaabe delegations preferred a perpetual annuity in exchange for the entire territory”, “carved out reserves from ceded territories”, “surrendered or ceded”, “the sharing of revenues from the ceded territories” and “pre-existing interest in the ceded lands and territories”.

The existence of so many uses of these terms and phrases amply supports the argument that the Supreme Court has ruled that the historical treaties were land ceding or surrender agreements.

There are no winners coming out of the Restoule decision.

All involved in it are losers in different ways.

Canada and Ontario have lost more of their sovereignty.

The Supreme Court of Canada will suffer a further loss of trust and confidence in it on the part of  the citizenry.

 Ontario and Canadian taxpayers will see their taxes go up to pay these obscene settlement and damages amounts.

Reconciliation will regress, not advance.

Canada will further harden into a race-state.

The $510 million lawyers are already fighting with some of their clients over their seriously excessive legal fees and accordingly will suffer a loss of their most precious asset -their reputations.

The biggest losers are the vast majority of marginalized Huron-Superior Aboriginals. The undeserved big cheques they will get will not improve one iota their reserve lives of passivity, inertia and dependency. Those cheques will only exacerbate those things and, like the lawyers already fighting with some of their clients over some of this money, will surely bring down onto their heads much  personal, family and social dissension and dysfunction.

The Restoule decision is a tragedy for all of Canada.

Peter Best

Sudbury

August 1, 2024

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