Daniel McCoy

Nine parties brought motions to intervene in an action concerning the interpretation of the Robinson Huron Treaty and the boundaries of the plaintiff's reserve lands.

Eight of the proposed intervenors were neighbouring First Nations who are also signatories to the Treaty, while the ninth was an unincorporated litigation trust.

The Superior Court of Justice granted party intervenor status to the eight First Nations, finding they had a direct interest in the boundary dispute and could provide useful context without overwhelming the plaintiff's case.

The court imposed strict conditions on their participation to prevent undue delay.

The motion by the litigation trust was dismissed, as it was not a rights-holder itself and its participation would be duplicative and unduly prejudicial to the plaintiff.

The plaintiffs brought a motion on consent for a partial judgment to give effect to a settlement agreement regarding past annuities payable under the Robinson Huron Treaty of 1850.

The settlement resolves claims that the Crown failed to fulfill its promise to augment the annuity over time.

Under the agreement, the federal and provincial Crowns will pay $10 billion to the plaintiffs.

The court approved the settlement agreement and granted the partial judgment.

The Ontario Court of Appeal remitted the issue of the Huron plaintiffs' Stage One trial costs to the Superior Court for reconsideration, questioning the substantial difference in hours claimed compared to the Superior plaintiffs.

The court found the Huron plaintiffs' costs to be fair and reasonable, noting the added complexity of representing 21 First Nations, the extensive evidence led on the Anishinaabe perspective, the incorporation of Anishinaabe Ceremony and protocol, and the necessary creation of the Robinson Huron Trust to manage the litigation.

The court concluded that the costs were proportionate and within the reasonable expectations of the parties given the historical significance and complexity of the treaty claims.

The Crown appealed the Stage One and Stage Two decisions regarding the interpretation of the Robinson-Huron and Robinson-Superior Treaties of 1850.

The trial judge found that the Treaties' augmentation clause imposed a mandatory obligation on the Crown to increase the perpetual annuities if the economic circumstances of the ceded territories warranted it, without a hard cap of $4 per person.

The Court of Appeal unanimously upheld the trial judge's conclusion that the Crown has an obligation under the honour of the Crown to diligently implement the augmentation promise and that its discretion is not unfettered.

The Court unanimously set aside the trial judge's finding of an ad hoc fiduciary duty and her specific remedial directives regarding a 'fair share' of net resource revenues.

The Court also unanimously dismissed the Crown's limitations defence.

The Court split on the standard of review for historical treaties and whether the trial judge made extricable errors of law in her interpretation, but the majority upheld her core interpretation of the augmentation clause.