Julia Mc Randall

This decision addresses a motion for intervener status in an appeal concerning novel issues of Aboriginal title to submerged lands and the public right of navigation.

The Court of Appeal for Ontario granted intervener status to four Indigenous communities, finding they could make a useful contribution to the appeal.

The order stipulated that interveners could not raise new issues and that affidavits filed in support of the motions were for contextual purposes only, not for adjudicative facts.

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.