Supreme Court of Canada **Appeals Heard:** November 7 and 8, 2023

Judgment Rendered: July 26, 2024 Docket: 40024 --- ## Parties Between: Attorney General of Ontario and His Majesty The King in Right of Ontario Appellants/Respondents on cross-appeal and Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850 Respondents/Appellants on cross-appeal and Attorney General of Canada Respondent And Between: Attorney General of Ontario and His Majesty The King in Right of Ontario Appellants/Respondents on cross-appeal and Chief and Council of the Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians and Chief and Council of the Whitesand First Nation, on behalf of the Whitesand First Nation Band of Indians Respondents/Appellants on cross-appeal and Attorney General of Canada Respondent - and - Attorney General of New Brunswick, Biigtigong Nishnaabeg First Nation (also known as the Begetikong Anishnabe First Nation or the Ojibways of the Pic River First Nation), Halfway River First Nation, Federation of Sovereign Indigenous Nations, Atikameksheng Anishnawbek, Manitoba Keewatinowi Okimakanak Inc., Carry the Kettle Nakoda Nation, Assembly of Manitoba Chiefs, Anishinabek Nation, Teme-Augama Anishnabai, Temagami First Nation, Union of British Columbia Indian Chiefs, Nlaka'pamux Nation Tribal Council, Chawathil First Nation, High Bar First Nation, Neskonlith Indian Band, Penticton Indian Band, Skuppah Indian Band, Upper Nicola Band, Indigenous Bar Association in Canada, West Moberly First Nations, Athabasca Tribal Council Ltd., Tsawout First Nation, Kee Tas Kee Now Tribal Council, Saugeen First Nation, Chippewas of Nawash Unceded First Nation, Grassy Narrows First Nation, Assembly of First Nations and Namaygoosisagagun Community (who refer to themselves as the Namaygoosisagagun Ojibway Nation)

Interveners --- Indexed as: Ontario (Attorney General) v. Restoule 2024 SCC 27 File No.: 40024. 2023: November 7, 8; 2024: July 26. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. on appeal from the court of appeal for ontario --- ## Headnote Aboriginal law — Treaty rights — Historic treaties — Interpretation — Standard of review — Two treaties between First Nations and Crown containing clause according to which annual payments in exchange for ceded land would be augmented over time under certain circumstances — Annuities increased only once in 1875 — First Nations commencing actions against Crown for breach of treaties — Trial judge interpreting augmentation clause and articulating nature and content of Crown's obligation to increase annuities — Standard of appellate review for interpretation of historic treaties — Proper interpretation of augmentation clause. Aboriginal law — Treaty rights — Honour of Crown — Fiduciary duty — Duty of diligent implementation — Breach — Remedies — First Nations commencing actions against Crown for breach of two treaties providing for increase over time of annual payments in exchange for ceded land — Whether Crown's obligation under augmentation clause engages specific duties flowing from honour of Crown — Whether Crown has fiduciary duties in respect of augmentation clause — Whether Crown has duty to diligently implement augmentation clause — Appropriate remedy for Crown's breach of treaties. Limitation of actions — Breach of treaty — First Nations commencing actions against Crown for breach of historic treaties — Whether actions statute-barred by applicable provincial limitations legislation — Limitations Act, R.S.O. 1990, c. L.15. In 1850, the Anishinaabe of Lake Huron and Lake Superior entered into land cession treaties with the Crown. Under these treaties, known as the Robinson Treaties, the Anishinaabe ceded their territories to the Crown in exchange for, among other things, a perpetual annual payment of £600 under the Robinson-Huron Treaty and £500 under the Robinson-Superior Treaty. At the time the treaties were signed in 1850, the annuity was equivalent to about $1.70 per person under the Robinson-Huron Treaty and $1.60 per person under the Robinson-Superior Treaty. The treaties contained an "Augmentation Clause", according to which the annuities were to be increased over time if the ceded lands produced an amount that would allow the Crown to increase the annuity without incurring loss. A condition of the augmentation was that the amount "paid to each individual" would not exceed £1 (at the time, equal to approximately $4) a year, or "such further sum as Her Majesty may be graciously pleased to order". The annuities were increased to $4 per person in 1875, but have been frozen at that amount since then. The Lake Superior Anishinaabe ("Superior plaintiffs") filed a statement of claim in 2001 seeking declaratory and compensatory relief relating to the interpretation, implementation, and alleged breach of the Augmentation Clause. The Lake Huron Anishinaabe ("Huron plaintiffs") filed their own claim in 2014. The actions were tried together in three stages: Stage One addressed the interpretation of the treaties, Stage Two considered Ontario's defences of Crown immunity and limitations, and Stage Three concerned the plaintiffs' claim for damages and the allocation of liability between Canada and Ontario. At Stage One, the trial judge held that the Crown has a mandatory and reviewable obligation under the Augmentation Clause to increase the annuities when the economic circumstances warrant — i.e., if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss. The trial judge also found that the Crown must engage in a consultative process with the treaty beneficiaries and pay an increased annuity reflecting a fair share of the net Crown resource-based revenues. She further held that the reference to £1 (or $4) limits only the amount distributed to individuals, but does not limit or impose a cap on the total collective annuity. The trial judge rejected the argument that the Crown was under a sui generis fiduciary duty to administer the ceded land on behalf of the treaty beneficiaries, but she accepted that the principle of the honour of the Crown and an ad hoc fiduciary duty require the Crown to diligently implement the Augmentation Clause. At Stage Two, the trial judge ruled that Crown immunity and provincial limitations legislation did not bar the plaintiffs' claims. Stage Three was argued but has been stayed pending the present appeals. The Huron plaintiffs did not participate in Stage Three as they reached a settlement with Ontario and Canada dealing with claims for compensation in respect of past breaches of the Augmentation Clause. The Court of Appeal allowed in part Ontario's appeals from the Stage One judgment and amended the trial judge's Stage One orders. It dismissed Ontario's appeals from the Stage Two judgment. The court issued four sets of reasons with a shifting majority on each issue. A majority ruled that treaty interpretation is a question of law reviewable on a correctness standard, even when informed by findings of fact that are reviewable on a deferential standard. A different majority held that the trial judge did not err in her interpretation of the Augmentation Clause, except in concluding that the Robinson Treaties promised the Anishinaabe a fair share of the net Crown revenues. It agreed that there is a mandatory and reviewable obligation on the Crown to increase the annuities when the economic conditions warrant, and that the reference to £1 is a limit only on the part of the total annuity that may be distributed to individuals. It also held that the honour of the Crown obliges the Crown to increase the annuities beyond $4 as part of its duty to diligently implement the treaties. The Court of Appeal unanimously agreed with the trial judge that the Crown does not have unfettered discretion about whether to increase the annuities. As well, it held that, given the Crown's neglect of the treaty promise for almost 150 years, the court had the authority and obligation to impose specific and general duties on the Crown regarding the Augmentation Clause. Further, the Court of Appeal unanimously ruled that the trial judge erred in finding that the Crown is under an ad hoc fiduciary duty regarding the implementation of the Augmentation Clause, but agreed that no sui generis fiduciary duty arises. The court also concluded that no statutory limitation period precluded the claims for breach of the Robinson Treaties, and that it was not necessary to consider Crown immunity. Finally, a majority of the court held that the nature of the revenue sharing required by the Augmentation Clause is to be determined by the parties in negotiations or by the trial judge in Stage Three. Ontario appeals to the Court, raising questions about the appropriate standard of review for the interpretation of the Robinson Treaties, the proper interpretation of the Augmentation Clause, the nature and content of the Crown's obligation to give effect to that clause and the appropriate remedy for its breach, and the relevance of statutory limitation periods to the claims. The Huron and Superior plaintiffs cross-appeal on the question of the Crown's fiduciary duties. Before the Court, neither Canada nor Ontario disputes that they are in longstanding breach of the annuity promises. Held: The appeals should be allowed in part, the cross-appeals dismissed, and a declaration issued. The interpretation of historic Crown-Indigenous treaties is reviewable for correctness. Applying this standard of review to the instant case, along with the relevant treaty interpretation principles, the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. If the Crown can increase the annuities beyond $4 per person, it must exercise its discretion and decide whether to do so and, if so, by how much. This discretion is not unfettered; it is to be exercised liberally, justly, and in accordance with the honour of the Crown. The frequency with which the Crown must consider whether it can increase the annuities must also be consistent with the honour of the Crown. In addition, given the longstanding and egregious nature of the Crown's breach of the Augmentation Clause, the Crown must exercise its discretion and increase the annuities with respect to the past. Having already reached a negotiated settlement concerning past breaches with the Huron plaintiffs, the Crown is directed to engage in time-bound and honourable negotiation with the Superior plaintiffs about compensation for past breaches. As well, the breach of treaty claims are not statute-barred by Ontario's limitations legislation. Finally, although no specific fiduciary duties apply in respect of the augmentation promise, the honour of the Crown requires the Crown to diligently fulfill this promise. The Crown's ongoing breach of the Augmentation Clause, in the circumstances, is also a breach of the treaties themselves. Treaties are sui generis agreements intended to advance reconciliation. The Crown's assertion of sovereignty gave rise to a distinctive legal relationship between the Crown and Indigenous peoples. That distinctive legal relationship is reflected in treaties, which represent an exchange of solemn promises and are governed by special rules of interpretation. In order to promote reconciliation, treaty rights must be interpreted and implemented in accordance with the honour of the Crown — the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign. Although all treaty rights must be interpreted in accordance with the honour of the Crown, there are important differences between historic (pre-1921) and modern (post-1973) treaties. The words in an historic treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of interpretation. They should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Indigenous signatories. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed. The court must be sensitive to the unique cultural and linguistic differences between the parties, and the words of the treaty must be given the sense which they would naturally have held for the parties at the time. While construing the language generously, the court cannot alter the terms of the treaty by exceeding what is possible or realistic. Treaty rights must not be interpreted in a static or rigid way; they are not frozen at the date of signature. Because a court must consider both the words of a treaty and the historical and cultural context, it is useful to approach treaty interpretation in two steps: at the first step, the court focuses on the words of the treaty clause at issue and identifies the range of possible interpretations, and at the second step, the court considers those interpretations against the treaty's historical and cultural backdrop. The standard of review for the interpretation of historic treaties is correctness. The constitutional nature of treaties as nation-to-nation agreements that engage the honour of the Crown and the process of reconciliation itself demands that appellate courts be given wide latitude to correct errors in their interpretation when necessary. The perpetual, multi-generational nature of treaty rights calls for the consistency of interpretation that is the goal of correctness review. A court's interpretation of treaty rights will be binding in perpetuity and has a significant precedential character. In addition, historic Crown-Indigenous treaties are binding not only on their direct signatories; they are binding upon all Canadians who, because of the Crown's assertion of sovereignty, are also effectively implicated. A court's interpretation of an historic treaty thus has extensive normative reach, which further supports correctness review. Although the interpretation of an historic treaty right is reviewable for correctness, the factual findings underpinning that interpretation attract deference and are reviewable only for palpable and overriding error. The policy rationales supporting such deference include the need to limit the number, length, and cost of appeals, to promote the autonomy and integrity of trials, and to recognize the expertise and advantageous position of the trial judge who has reviewed the evidence. The last of these is particularly significant in historic treaty interpretation where the trial judge's factual determinations are the product of a robust and highly involved trial process. The wording of the Augmentation Clause in the Robinson Treaties must be considered in the context of the purpose of the treaties as a whole. Under the treaties, the Anishinaabe ceded their interest in identified lands, were granted reserve lands to live on, retained treaty rights to hunt and fish, and were promised a perpetual annuity. The Robinson Treaties departed from the fixed annuity model used in other treaties, as they allowed for the annuities to be increased or decreased, depending on the circumstances. The Augmentation Clause contemplates some general notion of sharing future revenues of the ceded territories. It gives voice to the Crown's goal of acquiring immediate access to the ceded territories and opening them up to settlement and economic development. It is also consistent with the Anishinaabe's perspectives on the treaty relationship: it demonstrates respect by acknowledging both the Anishinaabe's jurisdiction over the land and their authority to conclude an agreement with the newcomers; it shows reciprocity by making concrete their expectation that a gift would attract a reciprocal gift of commensurate value; it embodies responsibility in affirming the Anishinaabe's ongoing duties to their people, at the time the Robinson Treaties were signed and in perpetuity; and it allows for renewal since the treaties would adjust as economic circumstances changed. At step one of the two-step framework for treaty interpretation, the wording of the Augmentation Clause must be examined to identify its possible interpretations. It provides that the annuities "shall be augmented from time to time" if the ceded lands produce an amount that would allow the Crown to "increase" the annuities "without incurring loss". A condition of the augmentation promise is that the amount "paid to each individual" would not exceed £1 a year, or "such further sum as Her Majesty may be graciously pleased to order". Although there are various possible interpretations of the Augmentation Clause, the real debate is between an interpretation that involves both a collective and an individual part to the annuity, and an interpretation that involves only one individual part. There is an ambiguity as to what the parties intended, because the annuity is stated in another clause of the treaties to be delivered to the "Chiefs and their Tribes", while the Augmentation Clause refers to "the amount paid to each individual". In order to choose the interpretation that comes closest to reflecting the parties' common intention, it is necessary to proceed to the second step of the treaty interpretation framework and consider the wording of the Augmentation Clause against its historical and cultural backdrop. It is only at the end of the two-step exercise that a genuinely ambiguous treaty term can be resolved. Both the language of the Augmentation Clause and its historical and cultural context support an interpretation that involves only one component: a perpetual annuity payable to the "Chiefs and their Tribes" that could be increased if an economic condition was met — i.e., if the economic circumstances permitted the Crown to do so without incurring loss. The reference to the "amount paid to each individual" not exceeding $4 does not create an obligation to pay an annuity to individuals, separate from an obligation to pay the collective; it merely imposes a condition on the obligation to augment the annuity. It would have been highly unusual for the Crown to have included in the middle of the Augmentation Clause an obligation to pay a part of the annuity to individuals, separate from the obligation to pay the collective, as this would be a fundamental change to the established patterns of treaty making and would have been unprecedented. As well, there is no evidence of an intention to grant an annuity divided between a collective part and an individual part, or that either party believed that the annuity had both collective and individual parts. Finally, the manner in which payments were made tends to refute the suggestion of a bifurcated annuity; neither the Huron nor the Superior annuity has ever been paid contemporaneously to both the collective and to individuals. Thus, the proper interpretation of the Augmentation Clause is that it obliges the Crown to pay a single annuity to the Anishinaabe "Chiefs and their Tribes". There is a mandatory obligation to increase the annuity up to $4 when the economic circumstances warrant, as was done in 1875. This increased annuity is a "soft cap" beyond which further increases are discretionary. If the economic conditions are such that the Crown can increase the annuity beyond $4 per person without incurring a loss, the Crown must exercise its discretion to determine whether to do so and, if so, by how much. This exercise of discretion is not unfettered; it is justiciable and reviewable by the courts. The Crown must exercise its discretion, including as to how often it turns its mind to increasing the annuity, diligently, honourably, liberally, and justly, while engaging in an ongoing relationship with the Anishinaabe based on the values of respect, responsibility, reciprocity and renewal. The Huron and Superior plaintiffs' breach of treaty claims are not statute-barred by Ontario's 1990 Limitations Act. First, the plaintiffs' breach of treaty claims are not "actions on the case" subject to a limitation period under the Act. An action "on the case" was a common law action that allowed plaintiffs to bring claims for personal wrongs and injuries that could not be brought in trespass; they were generally limited to actions in the nature of tort, but in some cases were extended to actions in the nature of contract as well. A claim for breach of a treaty right is fundamentally different than an action on the case. Treaty claims are not based in tort or contract: they are based on constitutional rights, engaging issues of public law rather than private law. Moreover, the 1990 Limitations Act applies only to a closed list of enumerated causes of action, and the action on the case cannot be used as a catch-all cause of action or basket clause capturing any claim not expressly mentioned in the Act. In addition, in the 2002 amendments to the Act, Aboriginal and treaty rights were excluded from the limitation periods established in the statute. In making these amendments, the legislature understood that treaty claims are distinct from other causes of action, and dealt with such claims explicitly. Second, the plaintiffs' claims for equitable compensation are also not "actions of account" subject to a limitation period under the 1990 Limitations Act. While actions of account can include common law and equitable claims, the origin and scope of this type of action suggest it is ill-suited to the context of Crown-Indigenous treaties. An action of account was typically used at common law against a person who was required to render an account to another because of a fiduciary relationship. While the relationship between the Crown and Indigenous peoples is fiduciary in nature, no specific fiduciary obligation arises in the instant case to potentially bring the plaintiffs' claims within the scope of actions of account. In addition, the correct interpretation of the Augmentation Clause reveals that the Crown is not required to account to the treaty beneficiaries for the proceeds of the ceded territories. Rather, increases to the annuities beyond $4 are discretionary. Finally, there appears to be no precedent treating Aboriginal or treaty rights as actions of account. The honour of the Crown is a constitutional principle that must guide the interpretation and implementation of the Augmentation Clause and the appropriate remedies for the Crown's breach. Although the honour of the Crown is a powerful constitutional doctrine, it is not a cause of action in itself; rather, it speaks to how obligations that attract it must be fulfilled. It is not a mere incantation, but rather a core precept that finds its application in concrete practices, and gives rise to different duties in different circumstances. The honour of the Crown can give rise to a fiduciary duty where the Crown assumes discretionary control over a cognizable Aboriginal interest. The Crown may owe ad hoc and sui generis fiduciary duties to Indigenous peoples in respect of certain interests. An ad hoc fiduciary duty may arise from the relationship between the Crown and Indigenous peoples where the general conditions for such a private law fiduciary relationship are satisfied — that is, where the Crown has undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of the alleged beneficiary. In the instant case, this duty does not arise. There is no evidence that the Crown undertook to act in the best interests of the Huron and Superior plaintiffs or with utmost loyalty in discharging its obligations. Moreover, in exercising its discretion about whether to increase the annuities, the Crown must consider the wider public interest; its obligations regarding the Augmentation Clause could not have involved an undertaking to forsake the interests of all others in favour of the Anishinaabe. A sui generis fiduciary duty is specific to the relationship between the Crown and Indigenous peoples. Its origins lie in protecting the interests of Indigenous peoples in recognition of the degree of economic, social, and proprietary control and discretion asserted by the Crown over them. A sui generis fiduciary duty arises where there is: (1) a specific or cognizable Aboriginal interest; and (2) a Crown undertaking of discretionary control over that interest. In the instant case, there is no specific or cognizable Aboriginal interest identified by the Huron and Superior plaintiffs. Their treaty right under the Augmentation Clause is, by definition, not sufficiently independent of the Crown's executive functions, because it arises from the exercise of the Crown's executive treaty-making function. Nor is the Huron and Superior plaintiffs' pre-existing interest in their ceded land a specific or cognizable Aboriginal interest. Even if it were, the second requirement for a sui generis fiduciary duty — an undertaking by the Crown of discretionary control over the interest — is not met: neither the treaty text nor the context in which the Robinson Treaties were signed provide any evidence that the Crown would administer the land on behalf of the treaties' beneficiaries. While the Crown is not subject to a fiduciary duty in respect of the Augmentation Clause, the Crown is subject to a duty to diligently implement or fulfill that promise, and its failure to do so is a breach of the Robinson Treaties. The duty of diligent implementation holds the Crown responsible for making good on its treaty promises. This duty flows directly from the honour of the Crown and requires the Crown to take a broad purposive approach to the interpretation of a promise and to act diligently to fulfill it. This requires that the Crown seek to perform the obligation in a way that pursues the purpose behind the promise. The duty of diligent implementation cannot impose only procedural obligations regarding the implementation of the Augmentation Clause — by which the Crown would simply be required to consider or turn its mind to discretionary increases to the annuities from time to time. While the duty of diligent implementation speaks to how Crown obligations must be fulfilled, rather than specifying a particular result in a given case, courts must guard against divorcing the duty of diligent implementation from the very nature of the treaty promise at issue. Since 1875, the Crown has failed to consider whether it can increase the annuities, and thus has breached its duty to diligently implement the treaties' Augmentation Clause. In these circumstances, the Crown is required to pay an amount, which is subject to review by the courts, to compensate the Superior plaintiffs for its past breach of the Augmentation Clause. Because the Crown has breached its duty to diligently fulfill the Augmentation Clause under the Robinson Treaties, the Huron and Superior plaintiffs are entitled to a remedy. In principle, the full range of remedies — declaratory and coercive — is available. Courts should take a purposive approach to determining the appropriate remedy. The controlling question is what is required to maintain the honour of the Crown and to effect reconciliation. In the instant case, the Anishinaabe have been left with an empty shell of a treaty promise for almost a century and a half. In this context, a declaration setting out the rights and obligations of the treaty parties, including the Crown's obligations under the Augmentation Clause, will be a helpful and appropriate remedy as it will inform both the future implementation of the Robinson Treaties and clarify the nature of the past breach. At the same time, given the longstanding and egregious nature of the Crown's breach, a declaration alone would be insufficient. Although the Crown was able to increase the annuities beyond $4 per person without incurring loss in the past, and it should have exercised its discretion to do so, well over a century has passed since the Crown has turned its mind to that promise, and to the renewal of the relationship itself. The Crown has severely undermined both the spirit and substance of the Robinson Treaties. In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown, sufficiently vindicate the treaty rights, or meaningfully advance reconciliation. A mere declaration would risk forcing the Anishinaabe to continue to rely on a historically dishonourable treaty partner. This would be deeply unsatisfactory and would risk leaving the Anishinaabe with an empty shell of a promise once again. Given that the Crown has reached a negotiated settlement concerning past breaches with the Huron plaintiffs, but not with the Superior plaintiffs, further direction should be provided to the Crown regarding the Superior plaintiffs to ensure that it exercises its discretion under the Augmentation Clause in a timely and honourable manner regarding compensation for past breaches. In respect of the period from 1875 to the present, the Crown must increase the annuity payable to the Superior plaintiffs under the Robinson Treaties beyond $4 per person retrospectively since it would be patently dishonourable not to do so. However, proceeding immediately to a judicially calculated damages award for past breaches would not be appropriate at this time, given the nature of the treaty promise as a discretionary one, the proper role of the courts, and the need to effectively repair the treaty relationship and restore the honour of the Crown. The Augmentation Clause is not a promise on the part of the Crown to pay a certain sum of money. Rather, it is a promise to consider whether the economic conditions allow the Crown to increase the annuities without incurring loss and, if they do, to exercise its discretion and determine whether to do so and, if so, by how much. Until the Crown has exercised that discretion through honourable engagement with its treaty partners and has proposed an amount of compensation, it should generally not be judicially compelled to pay a certain sum. A judicially calculated damages award would remove any Crown discretion and any engagement between treaty partners. Instead, a narrow, time-bound window for honourable negotiation, after which the Crown would be required, failing a settlement, to exercise its discretion honourably and determine an amount of compensation, has greater potential to fulfill the purposes of the Augmentation Clause and hold the Crown to account for its breach of the treaty to date. Negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. This approach would also respect the proper role of the courts. 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, including weighing the solemnity of the Crown's obligations to the Anishinaabe against the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within that of the courts. While courts are not incompetent or unable to entertain these considerations when necessary, they are generally not well equipped to make such choices or to evaluate the wide-ranging consequences that flow from policy implementation. Accordingly, courts should exercise considerable caution before intervening. Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much their business to review exercises of Crown discretion to ensure compliance with treaty obligations and the honour of the Crown. The Crown should be directed to engage meaningfully and honourably with the Superior plaintiffs in an attempt to arrive at a just settlement regarding past breaches. If such a settlement cannot be mutually agreed upon, the Crown will be obliged to exercise its discretion under the Augmentation Clause and set an amount as compensation. That amount, and the process through which it is arrived at, will be subject to review by the courts. The courts should focus on the justification of the Crown's determination and consider factors such as: the nature and severity of the Crown's past breaches; the number of Superior Anishinaabe and their needs; the benefits the Crown has received from the ceded territories; the wider needs of other Indigenous and non-Indigenous populations of Ontario and Canada; and 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 the Crown has exercised its discretion liberally, justly, and honourably, then the courts should not intervene. If the courts find that the Crown's process or its ultimate determination was not honourable, they may consider the appropriate remedy, including whether to remand the issue to the Crown for redetermination or set the amount to be paid by the Crown. --- ## Counsel Peter Griffin, K.C., Nina Bombier, Samantha Hale and Richard Ogden, for the appellants/respondents on cross-appeal the Attorney General of Ontario and His Majesty The King in Right of Ontario. David Nahwegahbow, Catherine Boies Parker, K.C., Dianne Corbiere and Christopher Albinati, for the respondents/appellants on cross-appeal Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850. Harley Schachter and Kaitlyn Lewis, for the respondents/appellants on cross-appeal the Chief and Council of the Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, and the Chief and Council of the Whitesand First Nation, on behalf of the Whitesand First Nation Band of Indians. Zoe Oxaal, Glynis Evans and Anusha Aruliah, for the respondent the Attorney General of Canada. Josh J.B. McElman, K.C., and Bailey Campbell, for the intervener the Attorney General of New Brunswick. Spencer Bass, for the intervener the Biigtigong Nishnaabeg First Nation (also known as the Begetikong Anishnabe First Nation or the Ojibways of the Pic River First Nation). Kajia Eidse-Rempel, for the intervener the Halfway River First Nation. Ron S. Maurice and Geneviève Boulay, for the intervener the Federation of Sovereign Indigenous Nations. Ryan Lake and Geneviève Boulay, for the intervener Atikameksheng Anishnawbek. Michael Jerch and Jessica Barlow, for the intervener Manitoba Keewatinowi Okimakanak Inc. Geneviève Boulay and Ryan Lake, for the intervener the Carry the Kettle Nakoda Nation. Carly Fox, for the intervener the Assembly of Manitoba Chiefs. Patricia Lawrence and Samantha Dawson, for the intervener the Anishinabek Nation. Bruce McIvor and Kate Gunn, for the interveners Teme-Augama Anishnabai and the Temagami First Nation. Peter Millerd and Erica Stahl, for the interveners the Union of British Columbia Indian Chiefs, the Nlaka'pamux Nation Tribal Council, the Chawathil First Nation, the High Bar First Nation, the Neskonlith Indian Band, the Penticton Indian Band, the Skuppah Indian Band and the Upper Nicola Band. Alexandria Winterburn and Jason T. Madden, for the intervener the Indigenous Bar Association in Canada. Katie I. Duke and Chya R. Mogerman, for the intervener the West Moberly First Nations. Glenn K. Epp and Eric L. Pentland, for the intervener the Athabasca Tribal Council Ltd. John W. Gailus, for the intervener the Tsawout First Nation. Kevin Hille and Jesse Abell, for the intervener the Kee Tas Kee Now Tribal Council. Krista Nerland, Cathy Guirguis and Graeme Cook, for the interveners the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation. Adrienne Telford and Jackie Esmonde, for the intervener the Grassy Narrows First Nation. Stuart Wuttke and Adam Williamson, for the intervener the Assembly of First Nations. Julian Falconer and Jeremy Greenberg, for the intervener the Namaygoosisagagun Community (who refer to themselves as the Namaygoosisagagun Ojibway Nation). --- ## Reasons for Judgment The judgment of the Court was delivered by Jamal J. — --- ### Table of Contents | Section | Paragraph | |---------|-----------| | I. Introduction | 1 | | II. Facts | 14 | | A. The Anishinaabe of the Upper Great Lakes | 15 | | B. The Anishinaabe's System of Law and Governance | 17 | | C. The Historical Context of Anishinaabe-Crown Relations | 19 | | (1) The Covenant Chain Alliance | 19 | | (2) The Royal Proclamation, 1763 | 21 | | (3) The Council at Niagara (1764) | 22 | | (4) The War of 1812 | 23 | | (5) The Annuity Model and Civilization Policy | 24 | | D. Events Leading to the Robinson Treaties | 27 | | (1) Mining in the Upper Great Lakes Region | 27 | | (2) The Vidal-Anderson Commission (1849) | 28 | | (3) The Mica Bay Incident (1849) | 30 | | (4) The Negotiation of the Robinson Treaties (1850) | 31 | | (5) Key Provisions of the Robinson Treaties | 42 | | E. Payment of the Annuities After 1850 | 44 | | F. This Litigation | 46 | | III. Judicial History | 47 | | A. Ontario Superior Court of Justice (Stage One), 2018 ONSC 7701 | 48 | | B. Ontario Superior Court of Justice (Stage Two), 2020 ONSC 3932 | 50 | | C. Court of Appeal for Ontario (Stages One and Two), 2021 ONCA 779 | 51 | | (1) Standard of Review | 52 | | (2) Interpretation of the Robinson Treaties | 53 | | (3) Honour of the Crown | 55 | | (4) Fiduciary Duty, Crown Immunity, and Limitations | 56 | | (5) Remedies | 57 | | D. Subsequent Developments | 59 | | IV. Issues | 65 | | V. Analysis | 67 | | A. The Interpretation of Historic Aboriginal Treaties | 67 | | (1) Treaties Are Sui Generis Agreements Intended To Advance Reconciliation | 68 | | (2) Treaty Rights Must Be Interpreted in Accordance With the Honour of the Crown | 71 | | (3) Differences Between Historic and Modern Treaties | 75 | | (4) Principles Governing the Interpretation of Historic Treaties | 78 | | B. The Standard of Appellate Review for the Interpretation of Historic Treaties | 83 | | C. The Interpretation of the Augmentation Clause in the Robinson Treaties | 120 | | D. Limitations Issues | 198 | | E. The Crown's Obligation To Diligently Implement the Augmentation Clause | 218 | | F. The Remedy for the Crown's Failure To Diligently Implement the Augmentation Promise | 265 | | VI. Disposition | 311 | | Appendix | — | --- ## I. Introduction [ 1 ] These appeals test the Crown's commitment to reconciliation with the Anishinaabe of the upper Great Lakes after the Crown has dishonourably breached its sacred promises to them under the Robinson Treaties for almost 150 years. [ 2 ] The Robinson Treaties of 1850 comprise the Robinson-Huron Treaty and the Robinson-Superior Treaty. Under these treaties, the Anishinaabe of the northern shores of Lake Huron and Lake Superior ceded their vast territories in exchange for, among other things, an annual payment in perpetuity. The annuities were to be increased over time under certain circumstances. However, for almost 150 years, the annuities have been frozen at a shocking $4 per person, after the first and only increase was made in 1875. Today, in what can only be described as a mockery of the Crown's treaty promise to the Anishinaabe of the upper Great Lakes, the annuities are distributed to individual treaty beneficiaries by giving them $4 each. [ 3 ] The central question in these appeals is the proper interpretation of the "Augmentation Clause" of the Robinson Treaties. The Augmentation Clause provides that the annual payments or "annuities" to the Anishinaabe beneficiaries of the Robinson Treaties would be increased over time under certain circumstances. At its core, this case is about whether the Crown has a mandatory or discretionary obligation to increase the annuities under the Augmentation Clause, and whether the annuities have both a collective and an individual part, or just one component. [ 4 ] Although both Canada and Ontario now concede that they are in longstanding breach of the Robinson Treaties, Ontario maintains that the appropriate remedy is a declaration, while the Anishinaabe plaintiffs seek compensation for past breaches of the treaty promise. [ 5 ] The answers to the questions in these appeals will determine not only the rights and obligations of the parties to the Robinson Treaties, but also the extent to which Canadian courts can hold the Crown accountable for its breach of treaty obligations — a question of fundamental importance to all Canadians, Indigenous and non-Indigenous alike. [ 6 ] For the following reasons, I conclude that: (a) The interpretation of historic Crown-Indigenous treaties is reviewable for correctness. (b) The Augmentation Clause imposes a single component annuity — that is, the annuity is not divided into a collective and an individual part. The Crown has a mandatory obligation to increase the annuity to $4 per person when the economic condition is met. Beyond $4, increases are discretionary. This discretion is not unfettered: it is justiciable and reviewable by the courts, and must be exercised diligently, honourably, liberally, and justly, consistently with the honour of the Crown. (c) The breach of treaty claims of the Huron and Superior plaintiffs are not statute-barred. (d) The Crown is under no ad hoc or sui generis fiduciary duty in respect of the Augmentation Clause. However, the Crown is subject to a duty to diligently implement the Augmentation Clause. (e) The Crown has breached its duty to diligently implement the Augmentation Clause since 1875. (f) A declaration is an appropriate remedy. However, given the longstanding and egregious nature of the breach, a declaration alone is insufficient. The Crown must exercise its discretion and determine an amount of compensation for the Superior plaintiffs for past breaches of the Augmentation Clause, either through negotiated settlement or by unilateral Crown determination. [ 7 ] In these appeals, this Court has the opportunity to hold the Crown to account for a dishonourable breach of the Robinson Treaties. This Court must ensure that the Anishinaabe are not left with an empty shell of a promise once again. [ 8 ] These appeals raise profound questions about reconciliation — a concept that fundamentally shapes the relationship between the Crown and Indigenous peoples in Canada. As this Court has repeatedly stated, reconciliation is a "central purpose" of s. 35 of the Constitution Act, 1982 (see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 17; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 21). [ 9 ] In the present case, the Crown made solemn promises to the Anishinaabe under the Robinson Treaties — promises that the Crown failed to keep for almost 150 years. In holding the Crown accountable for its breach of treaty, and in charting a path that will allow the treaty partners to renew their relationship and restore the Crown's honour, these appeals do not pit Indigenous peoples against non-Indigenous peoples; they pit all Canadians against dishonourable conduct. The Robinson Treaties were designed to allow all peoples of this country to live and prosper together, as partners. But this promise has gone unfulfilled for too long. [ 10 ] Before this Court, Ontario now concedes that it has been in breach of its duties under the Robinson Treaties for almost 150 years. Before this Court, Canada has also conceded that it is in breach of its duties. This belated concession is an important, if overdue, acknowledgement of the long history of dishonourable conduct by both Ontario and Canada. [ 11 ] For almost a century and a half, the Anishinaabe have been left with an empty shell of a treaty promise. In this context, a declaration setting out the rights and obligations of the treaty parties, including the Crown's obligations under the Augmentation Clause, is undoubtedly a helpful remedy. But given the longstanding and egregious nature of the Crown's breach, a declaration alone will not help repair the treaty relationship or restore the Crown's honour. As I have indicated, the Crown must exercise its discretion and increase the annuities with respect to the past. The Crown has reached a negotiated settlement concerning past breaches with the Huron plaintiffs, but not with the Superior plaintiffs. With a view to respecting the nature of the treaty promise, repairing the treaty relationship, restoring the honour of the Crown, and advancing reconciliation, I would also direct the Crown to engage in time-bound and honourable negotiation with the Superior plaintiffs about compensation for past breaches of the Augmentation Clause. If the Crown and the Superior plaintiffs cannot arrive at a negotiated settlement, the Crown will be required, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate the Superior plaintiffs for past breaches. [ 12 ] These conclusions are described in more detail in the analysis that follows. [ 13 ] Before proceeding, I acknowledge that the designation of the respondents by name may give rise to privacy concerns, and note that all names used in these reasons are found in publicly available court records. Moreover, the present case does not engage personal privacy interests of the kind that warrant the use of initials or pseudonyms. --- ## II. Facts (The judgment proceeds to set out the facts in detail at paras. 14–46, tracing the history of the Anishinaabe of the upper Great Lakes, their system of law and governance, the historical context of Crown relations, the events leading to the Robinson Treaties of 1850, the key provisions of those treaties, and the payment of annuities after 1850.) --- ## III. Judicial History (The judicial history is set out at paras. 47–64, covering the Stage One and Stage Two decisions of Hennessy J. of the Ontario Superior Court of Justice and the decision of the Court of Appeal for Ontario (Strathy C.J.O. and Lauwers, Hourigan, Pardu and Brown JJ.A.), 2021 ONCA 779, and subsequent developments including the Huron plaintiffs' settlement and the motion to stay Stage Three proceedings.) [ 59 ] Shortly after this Court granted leave to appeal and cross-appeal in June 2022, Ontario applied to this Court for an interim order staying Stage Three of the trial, which was scheduled to begin just weeks later, until this Court rendered its decision. The Huron and Superior plaintiffs opposed the relief sought and argued that Ontario's motion should be brought before the case management judge. Sitting as rota judge, I ordered Ontario to bring its motion to stay the hearing of Stage Three of the trial to the case management judge (Order of Jamal J. dated September 26, 2022). Ontario did so. Ontario moved to adjourn the Stage Three trial, then scheduled to begin in mid-January 2023, pending this Court's decision on the present appeals and cross-appeals. Ontario's motion was dismissed in late November 2022 and was not appealed further (2022 ONSC 7368). --- ## IV. Issues (The issues are set out at paras. 65–66.) --- ## V. Analysis ### A. The Interpretation of Historic Aboriginal Treaties #### (1) Treaties Are Sui Generis Agreements Intended To Advance Reconciliation [ 70 ] The Crown's assertion of sovereignty over Aboriginal societies gave rise to a distinctive or sui generis legal relationship between the Crown and Aboriginal peoples (Desautel, at para. 25, citing R. v. Badger, [1996] 1 S.C.R. 771, at para. 78). That distinctive legal relationship is reflected in treaties, which represent an exchange of "solemn promises" and are unique or sui generis agreements governed by special rules of interpretation (Simon v. The Queen, [1985] 2 S.C.R. 387, at pp. 404 and 410; R. v. Sioui, [1990] 1 S.C.R. 1025, at pp. 1038 and 1043; Badger, at para. 41). Treaties are sui generis because "they are the product of the special relationship between the Crown and Aboriginal peoples that is aimed at achieving reconciliation" (P. W. Hogg and L. Dougan"The Honour of the Crown: Reshaping Canada's Constitutional Law" (2016), 72 S.C.L.R. (2d) 291, at p. 311). --- ### B. The Standard of Appellate Review for the Interpretation of Historic Treaties [ 119 ] I conclude that while the trial judge's factual findings, including her findings of historical fact, attract deference, her interpretations of the treaty rights do not. Having regard to these standards of review, I now turn to the interpretation of the Augmentation Clause of the Robinson Treaties. --- ### C. The Interpretation of the Augmentation Clause in the Robinson Treaties #### (1) Introduction [ 120 ] The trial judge and the majority and minority of the Court of Appeal each applied the two-step Marshall framework and principles for treaty interpretation, but arrived at different readings of the Augmentation Clause. The key interpretive issues addressed by the courts below were: (1) whether the Augmentation Clause established an annuity with both a collective and an individual part; (2) whether increases to the annuity, or to any of its parts, were mandatory or discretionary; and (3) the manner in which the increases should be calculated. [ 121 ] The trial judge ruled that the Crown has a mandatory and reviewable obligation to increase the annuities when the economic circumstances warrant, which will occur if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss (Stage One reasons, at para. 3). In her view, the annuities must reflect a "fair share" of the net-Crown resource-based revenues of the ceded territory (para. 535). She interpreted the reference to £1 in the Augmentation Clause as limiting only the amount distributed to individuals, which could be increased in the Crown's discretion, but as not limiting or imposing a cap on the amount distributed to the collective (paras. 397 and 463-64). [ 122 ] The majority of the Court of Appeal agreed with the trial judge's interpretation, except for her conclusion that the treaties promised the treaty beneficiaries a "fair share" of the net revenues from ceded territories (paras. 86, 123 and 308-25). The minority of the Court of Appeal also rejected the trial judge's "fair share" conclusion, but identified other errors of law in the trial judge's interpretation (paras. 448-86). To the minority, the Robinson Treaties did not promise a two-part annuity, with one part distributed to individual beneficiaries, and the other part to the collective (para. 415). The reference in the treaties to a cap of £1 (or $4) was a "soft cap" on the total value of the annuity that could be increased at the discretion of the Crown, through the exercise of Her Majesty's graciousness (para. 415). [ 123 ] Before this Court, Ontario endorses the minority's interpretation. Canada has not appealed from the Court of Appeal majority's interpretation, but notes that its position at trial was closer to the minority's view. The Huron and Superior plaintiffs endorse the majority's reading. [ 124 ] As I explain below, although I agree with the minority's interpretation of the Augmentation Clause, I respectfully disagree with some of its reasons. I will consider each of the two steps of the Marshall framework. #### (2) Step One: Examining the Wording of the Augmentation Clause To Identify the Possible Interpretations [ 125 ] The wording of the Augmentation Clause must be considered in the context of the purpose of the Robinson Treaties as a whole. Under the treaties, the Anishinaabe ceded their interest in identified lands, were granted reserve lands to live on, retained treaty rights to hunt and fish, and were promised a lump sum of money and a perpetual annuity. [ 126 ] The Robinson Treaties departed from the fixed annuity model used in some other contemporary treaties. They allowed for the annuities to be increased or decreased, depending on the circumstances, rather than continuing as fixed amounts in perpetuity. The Crown broke with its longstanding practice since 1818 of setting the annuity at $10 per person multiplied by the population at the time the treaties were signed. Instead, the treaties provided for a lower initial annuity, with provision for future increases under certain conditions. In 1850, the annuity under the treaties was between $1.60 and $1.70 per person. In 1875, it was increased to $4 per person. In 1903, arrears were paid for the years between 1850 and 1876, because the Crown accepted that during this time its revenues would have permitted an increase to $4 per person "without incurring loss". [ 127 ] The starting point in interpreting the Augmentation Clause is to examine "the specific words used" (Marshall, at para. 5, per Binnie J.) and to determine "their facial meaning" (para. 82, per McLachlin J.). As this Court has emphasized, the "scope of treaty rights" is "determined by their wording" (Badger, at para. 76). In this case, there was no suggestion that the treaties were modified by oral promises or that the Robinson Treaties incompletely recorded the agreement between the Anishinaabe and the Crown. There is also no dispute that, as the trial judge found as fact, the treaties were read aloud and translated from English to Anishinaabemowin and "carefully explained" to the Anishinaabe before they were signed (Stage One reasons, at paras. 230 and 234-35). [ 128 ] This case is unlike Marshall, in which this Court held that the written text of the "peace and friendship" treaties of 1760-61 between the British and the Mi'kmaq was "incomplete" (para. 41). There, the Court invoked the principle of the honour of the Crown to imply a "right of access to things to trade" as a necessary adjunct of an express right to trade referred to in the treaties (para. 44). Nobody has suggested on appeal to this Court that a term ought to be implied into the Robinson Treaties to give them efficacy. The Court must simply interpret the treaties under the principles in Marshall. [ 129 ] The relevant language is in the Consideration Clause and Augmentation Clause of each treaty, both of which are reproduced earlier in these reasons and in the appendix. ##### (a) Uncontroversial Points About the Consideration and Augmentation Clauses [ 130 ] Several points are uncontroversial about these clauses. [ 131 ] First, as consideration under the Robinson-Huron Treaty, the Crown paid a lump sum of £2,000, plus a perpetual annuity of £600. Under the Robinson-Superior Treaty, the lump-sum payment was £2,000, and the perpetual annuity was £500. The Robinson-Huron beneficiaries received more because they had a larger population. [ 132 ] Second, the annuities are to be delivered to the "Chiefs and their Tribes" at a "convenient season of each summer". [ 133 ] Third, the Crown agreed that the annuity "shall be augmented from time to time", if the ceded lands produce an amount that would allow the Crown to "increase the annuity" "without incurring loss". [ 134 ] Fourth, a first condition of the augmentation is that the amount "paid to each individual" would not exceed £1 a year, or "such further sum as Her Majesty may be graciously pleased to order". [ 135 ] Fifth, a second condition is that the annuity "shall" be "diminished" proportionately if the number of people entitled "to claim the full benefit" of the treaty falls to two-thirds of the population at the time the treaties were signed (1,422 under the Robinson-Huron Treaty and 1,240 under the Robinson-Superior Treaty). ##### (b) Ambiguities Identified by the Trial Judge [ 136 ] The trial judge identified two ambiguities in the Augmentation Clause. The "first and most confounding ambiguity" that she identified is whether "the parties intended that the promise of a perpetual annuity would be a collective, as opposed to an individual, entitlement" (Stage One reasons, at para. 400). This ambiguity arises, the trial judge said, because the perpetual annuity is stated to be delivered to the "Chiefs and their Tribes", while any augmentation of the annuity refers to "the amount paid to each individual". She said that there is an "obvious missing link" between the perpetual annuity "paid to the Chiefs and their Tribes" and the "reference to individual payments" (para. 405). [ 137 ] The second ambiguity that the trial judge identified was "how to calculate the productivity of the territory to determine if and when increases are triggered" (para. 410). ##### (c) Four Possible Interpretations of the Augmentation Clause [ 138 ] Having identified these two ambiguities, the trial judge set out three possible interpretations of the Augmentation Clause, and alluded to a fourth. These four interpretations provide a useful framework for this Court's interpretation of the clause. ###### (i) The First Interpretation [ 139 ] The first interpretation is that "the Crown's promise was capped at $4 per person; in other words, once the annuity was increased to an amount equivalent to $4 per person, the Crown had no further liability" (Stage One reasons, at para. 459). On this interpretation, any increase above $4 per person is within the Crown's complete and unfettered discretion (para. 407). This was Ontario's position at trial and before the Court of Appeal. It was unanimously rejected by both levels of court, and Ontario has since abandoned it. ###### (ii) The Second Interpretation [ 140 ] The second interpretation is that "the Crown was obliged to make orders ('as Her Majesty may be graciously pleased to order') for further payments above $4 per person when the economic circumstances permitted the Crown to do so without incurring loss" (Stage One reasons, at para. 460 (underlining added)), which the trial judge called the "economic condition" (para. 461). ###### (iii) The Third Interpretation [ 141 ] The third interpretation, which the trial judge said "includes the second interpretation", is that "the Treaties were a collective promise to share the revenues from the territory with the collective"; that is"to increase the lump sum annuity so long as the economic condition was met" (Stage One reasons, at para. 461). On this interpretation"[t]he reference to £1 (equivalent of $4) in the augmentation clause is a limit only on the amount that may be distributed to individuals" (para. 461). The first condition — "provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order" — creates a separate payment to individuals out of the total annuity. [ 142 ] Under the third interpretation, the treaty promise to an annuity thus involves two parts: a collective part that must be increased without limit and without discretion when the economic condition is met, and an individual part paid or distributed to individuals — what the trial judge described as a "distributive amount" (para. 464). The distributive amount is capped at £1 (or $4), unless the Crown exercises discretion to increase it ("as Her Majesty may be graciously pleased to order"). Crucially, on this view, the discretion contained in the words "as Her Majesty may be graciously pleased to order" qualifies only the "individual" or "distributive" part of the annuity, but not the collective part or, by extension, the annuity as a whole (see C.A. reasons, at paras. 198 and 203 (majority)). There is no discretion as to whether to increase the collective part of the annuity and, if so, by how much. That is dictated solely by the economic condition. [ 143 ] The third interpretation thus involves both a bifurcated and hybrid annuity. The annuity is bifurcated into collective and individual parts. It is also a hybrid annuity, in that the collective part is mandatory, completely without discretion, and without a cap, while the individual part is mandatory below $4 per person, but then discretionary above $4 per person once the $4 cap is reached. The third interpretation also results, as the Court of Appeal minority noted, in "the collective [or total] entitlement" being "greater than the sum of the individual amounts that were to be distributed to members of the Robinson-Huron and Robinson-Superior Treaty First Nations" (para. 413). [ 144 ] The third interpretation was advanced by the Huron and Superior plaintiffs at trial and ultimately adopted by the trial judge and the majority of the Court of Appeal (per Lauwers and Pardu JJ.A., Hourigan J.A. concurring). It has been advanced again by the plaintiffs before this Court. ###### (iv) The Fourth Interpretation [ 145 ] The fourth interpretation, which the trial judge alluded to but did not explore, is that the annuity involves only one component — a perpetual annuity payable to the "Chiefs and their Tribes" — that would be increased if the economic condition was met. The annuity is subject to a cap of £1 (or $4) per person, but this is a "soft cap" and can be increased in the exercise of the Crown's discretion ("as Her Majesty may be graciously pleased to order"). This interpretation was explored and ultimately adopted by the minority of the Court of Appeal. The majority of the Court of Appeal never considered this interpretation. [ 146 ] Under the fourth interpretation, the reference to £1 (or $4) in the first condition of the Augmentation Clause ("provided that the amount paid to each individual shall not exceed" £1) does not create a separate payment to individuals. Instead, it simply limits the amount by which the annuity can be increased. It recognizes that the population of treaty beneficiaries might grow, and that the total annuity obligation may correspondingly grow, increasing the Crown's overall obligation. The first condition, which allows for an increase in the overall annuity, is mirrored by the second condition, which provides for the annuity to be correspondingly reduced if the population falls below the stated number. Both conditions apply to the total annuity. [ 147 ] On this reading, increases up to $4 per person are mandatory, while increases above $4 per person are discretionary. There is no cap on the amount the Crown can provide in the exercise of its discretion. If the population of the treaty beneficiaries were to fall below two-thirds of the population at the time the Robinson Treaties were signed, the annuity would be reduced in proportion to the population (though this has never happened). The promised annuity thus has only one part: the payment to the "Chiefs and their Tribes". [ 148 ] The fourth interpretation, which the trial judge acknowledged "has a certain logic" (Stage One reasons, at para. 456), largely reflected the position advanced by Canada at trial (paras. 377-80 and 408; Canada's R.F., at paras. 30 and 34). It was also the alternative position advanced by the Huron and Superior plaintiffs at trial (Stage One reasons, at para. 455; Huron plaintiffs' memorandum of argument (Stage One), at paras. 757-60; Superior plaintiffs' factum (Stage One), at para. 350). [ 149 ] Before this Court, Canada submits there is only a "limited difference" between the third and fourth interpretations adopted by the majority and minority of the Court of Appeal, respectively (R.F., at para. 31). Both interpretations require the Crown to diligently implement the Robinson Treaties by augmenting the annuities through an exercise of discretion. Both also recognize that the Crown's discretion is justiciable and not unfettered. Under the third interpretation, adopted by the majority, the Crown's obligation to augment the annuities is mandatory. Under the fourth interpretation, adopted by the minority, the Crown's obligation to augment the annuities is discretionary. Canada says that this difference "ha[s] little practical effect" for the past breaches of the treaties in these appeals (para. 33). This is because both Canada and Ontario have accepted that the annuities should be increased: the annuities have not been increased since they were set at $4 per person in 1875, and there is no debate that the economic condition is met (para. 33). As the Court of Appeal minority stated"in light of the Crown's neglect of the Treaty promise for over a century and a half, the court ha[s] the authority and the obligation 'to impose specific and general duties on the Crown'" (para. 503, citing Stage One reasons, at para. 497). Canada thus acknowledges that the Crown's failure to honour the Robinson Treaties "for approximately 150 years is subject to the courts' review and will be compensable" (R.F., at para. 34). Ontario also accepts that the courts can review the Crown's failure to honour the Robinson Treaties, but says that remedies such as damages and compensation are inappropriate (A.F., at para. 111). [ 150 ] I agree that given Ontario and Canada's concession that the annuities should be increased, there may be little practical difference between the third and fourth interpretations regarding the quantum of the annuities compensating for past breaches of the Robinson Treaties. The issue is far from academic, however, in relation to the remedy this Court should grant in these appeals or the future implementation of the Augmentation Clause. Whether the Augmentation Clause imposes a mandatory or discretionary obligation to augment the annuities, and whether the annuities have both collective and individual components, are issues that must be resolved. I will therefore proceed to the second step of the Marshall framework and consider the possible interpretations of the Augmentation Clause against the historical and cultural backdrop, to choose from among the possible interpretations the one that comes closest to reflecting the parties' common intention. #### (3) Step Two: Considering the Wording of the Augmentation Clause Against the Historical and Cultural Backdrop [ 151 ] The real debate before this Court, as it was before the Court of Appeal, is between the third and fourth interpretations of the Augmentation Clause. However, in the interest of completeness, I will say a few words about the first two interpretations. ##### (a) The First Interpretation [ 152 ] The first interpretation — that the Crown has an unfettered and unreviewable discretion as to whether to increase the annuity above $4 per person — can be rejected summarily for reasons of legal principle. An interpretation based on unfettered discretion does not fit within Canadian notions of legality and cannot reflect the common intention of the parties to the Robinson Treaties. It is a legal impossibility. [ 153 ] Discretion refers to those "decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options" within constraints imposed by law (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 52). The legal constraints can include, but are not limited to"statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter" (para. 56; see also Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33). In the present context, the relevant legal constraints include the constitutional principle of the honour of the Crown. [ 154 ] This Court has long recognized that "there is no such thing as absolute and untrammelled 'discretion'" (Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140; Vavilov, at para. 108; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 73). As noted by LeBel J. in Montréal (City), at para. 33"in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness". Our law requires discretion to be "exercised within a specific legal framework", and recognizes that "[d]iscretionary acts fall within a normative hierarchy" (para. 33). In a similar vein, Sir William Wade and Christopher Forsyth have stated that "in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms" (Wade & Forsyth's Administrative Law (12th ed. 2023), at p. 303). Wade and Forsyth declared that a claim of unfettered discretion by government is "constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns" (p. 16). It is therefore not surprising that Ontario abandoned reliance on the first interpretation, or that it was unanimously rejected by the courts below. [ 155 ] I note that the Court of Appeal minority characterized the first interpretation as a "hard cap", which it rejected as being inconsistent with the Crown's discretion to increase the annuity above $4 per person based on the "'Her Majesty's graciousness' clause" (paras. 452 and 454). Whether the first interpretation is characterized as being an "unfettered discretion" or a "hard cap" with no obligation to exercise discretion yields the same conclusion: the first interpretation is simply not a plausible reading of the treaty promise in the Augmentation Clause. ##### (b) The Second Interpretation [ 156 ] The second interpretation — that the Crown is required to increase the annuity above $4 per person when the economic condition is met — forms a component of the third interpretation, which I discuss next. ##### (c) Choosing Between the Third and Fourth Interpretations [ 157 ] Recall that under the third interpretation, which was accepted by the trial judge and the majority of the Court of Appeal (per Lauwers and Pardu JJ.A., Hourigan J.A. concurring), the annuity involves both a collective and an individual part. Under this interpretation, the Crown must increase the collective part of the annuity when the economic condition is met. There is no discretion as to whether to make those collective increases, and no cap on the total amount of the increase. The individual part of the annuity is a subset of the total annuity. The Crown is required to increase the individual part to $4 per person where the economic condition is met; however, increases above $4 per person are within the Crown's discretion. Under this interpretation, the total entitlement is greater than the sum of the individual entitlements distributed to the individual treaty beneficiaries. [ 158 ] Under the fourth interpretation, which was accepted by the Court of Appeal minority, the annuity involves only one part — a perpetual annuity payable to the "Chiefs and their Tribes" — that is to be increased if the economic condition is met. The annuity is subject to a cap equivalent to the aggregate sum of £1 (or $4) per person, but this is a "soft cap" and can be increased in the exercise of the Crown's discretion ("as Her Majesty may be graciously pleased to order"). [ 159 ] The Court of Appeal majority did not meaningfully engage with the fourth interpretation which, in my respectful view, was an error of law. [ 160 ] I agree with some of the reasons given by the Court of Appeal minority for preferring the fourth to the third interpretation, but disagree with others. [ 161 ] I agree with the Court of Appeal minority that, on a purely textual basis, the third interpretation is somewhat "strained and illogical" (para. 454). I do not read the reference to "the amount paid to each individual" as creating an obligation to pay individuals, separate from an obligation to pay the collective. The obligation to pay is created by the earlier language in the Consideration Clause that expressly provides that the perpetual annuity is "to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each summer". The reference to "the amount paid to each individual", which follows in the Augmentation Clause, imposes a condition on the obligation to augment the annuity. As the Court of Appeal minority noted (at para. 429), the trial judge herself described the first condition as establishing a "condition of the increase" of the annuity up to the £1 (or $4) cap (Stage One reasons, at para. 403 (emphasis added)). The condition of the obligation to augment is that "the amount paid to each individual shall not exceed" £1 a year. After the £1 (or $4) cap is reached, further increases could be made only as an exercise of discretion"as Her Majesty may be graciously pleased to order". The first condition relating to the augmentation ("provided that") is then followed by a second condition ("provided, further, that") relating, in parallel manner, to a reduction of the annuity if the population of beneficiaries falls below two-thirds of the population at the time the Robinson Treaties were signed. [ 162 ] I also agree with the Court of Appeal minority that it "seems strange" for Robinson to have buried in the middle of the Augmentation Clause an obligation to pay an annuity to individuals, separate from the obligation to pay the collective (para. 472). This would have been a highly unusual way to make such a fundamental change to the established patterns of treaty making at the time the Robinson Treaties were signed. Since 1818, no treaty had provided annuities with both collective and individual components. [ 163 ] I respectfully disagree with the Court of Appeal minority, however, that the third interpretation adopted by the trial judge "fail[s] to give any effect to the 'Her Majesty's graciousness' provision of the augmentation clause" (para. 431). As Canada fairly notes, both the third and fourth interpretations "confirm that the Crown retains discretion regarding when and how annuity increases will be determined and paid" (R.F., at para. 35). The trial judge expressly acknowledged that "the Crown does maintain significant discretion under the Treaties, including the implementation process" (Stage One reasons, at para. 569). Instead, the difference between the third and fourth interpretations is whether the discretion relates just to an individual distributive share (the third interpretation), or to the whole of the annuity (the fourth interpretation). [ 164 ] I also respectfully disagree with the Court of Appeal minority that the trial judge erred by "Finding Ambiguity Where There Was None" (heading of para. 436). Although I regard the third interpretation as somewhat strained and illogical, I accept that it is a possible interpretation in order to evaluate it against the historical and cultural backdrop under the second step of the Marshall framework. The first step of the Marshall framework accepts that there may be patent ambiguities from a facial reading of a treaty that are then resolved at the second step, after considering the relevant historical and cultural context. A treaty is only "ambiguous" in the legal sense if its terms can be interpreted in more than one way at the end of the interpretive process (see, by analogy, the approach taken to statutory interpretation in La Presse inc. v. Quebec, 2023 SCC 22, at para. 24). It is only at the end of the two-step Marshall exercise that a genuinely ambiguous treaty term benefits from the rule that "ambiguities or doubtful expressions should be resolved in favour of the [A]boriginal signatories" (para. 78(2), citing Simon, at p. 402, Sioui, at p. 1035, and Badger, at para. 52). [ 165 ] In what follows, I begin by addressing two points that the Court of Appeal minority found detracted from the third interpretation, which in my view do not do so. The first relates to evidence that the Anishinaabe may not have understood the idea of the Crown's discretion to augment the annuities under the Robinson Treaties. The second concerns the trial judge's conclusion that the treaties promised the Huron and Superior beneficiaries a "fair share" of the revenues derived from the ceded territories, which the Court of Appeal unanimously rejected. Neither point conclusively suggests that the third interpretation should be rejected. I will then consider five points relating to the historical and cultural backdrop. What is striking about the historical and cultural backdrop is how little, if any, of it supports the third interpretation but is consistent with the fourth interpretation. ###### (i) Two Points That Do Not Help Decide Between the Third and Fourth Interpretations 1. The Anishinaabe's Understanding of "as Her Majesty May Be Graciously Pleased To Order" [ 166 ] I begin with the evidence of the Anishinaabe's understanding of the Crown's discretion, and conclude that it does not resolve whether the third or fourth interpretation reflects the parties' common intention, as both incorporate a notion of discretion. It was not disputed before this Court that the expression "as Her Majesty may be graciously pleased to order" connotes discretion. It was the usual way of referring to the royal prerogative (see Stage One reasons, at paras. 442 and 447; C.A. reasons, at para. 196 (majority) and at para. 463 (minority)). As explained by the plaintiffs' expert ethnohistorian, Mr. James Morrison: > At this period [when the Robinson Treaties were signed], various versions of the phrase "Her (or His) Majesty may be graciously pleased" were in common use, both in Britain and throughout its colonial possessions. It was, in fact, the normal way of referring to the exercise of the prerogative powers of the Crown. Robinson himself was perfectly familiar with this kind of language. In 1839, for example, the House of Assembly and Legislative Council of Upper Canada prepared a joint address of congratulation to Sir John Colborne upon his appointment as Governor General of British North America. Not only did they thank Colborne for his past services (he had earlier served as Lieutenant Governor), they said that they would "rejoice in any further distinction which Her Majesty may be graciously pleased hereafter to confer upon you". W.B. Robinson was one of the Members of the House tasked with presenting the joint address to the new Governor in Chief. [Footnotes omitted.]

(Affidavit of James Morrison, at para. 384) [ 167 ] An issue at trial was whether the Anishinaabe understood this notion of Crown discretion under the royal prerogative before they signed the Robinson Treaties. At first blush, the trial judge seemed to find that they did not, and therefore it could not have formed part of the common intention of the parties. She referred to the evidence of Elder Rita Corbiere, who translated the Robinson Treaties into Anishinaabemowin, and explained that there was no way to translate the phrase "as Her Majesty may be graciously pleased to order". As the trial judge stated: > Elder Corbiere described her challenges in doing the translation. There were a number of words and phrases for which she said there was no direct translation (e.g. cede, surrender). She also said that the number "two thousand" would have been very hard to translate, perhaps impossible. There is no word for "title" in the language and, in fact, there was no concept of alienation of land. In her testimony, Elder Corbiere further explained how there is no way to translate"as Her Majesty may be graciously pleased to order." She testified that the Anishinaabe lived with notions of what they expected of their leaders: to be generous, to live in a good way, to do right by the people.

The Robinson Treaties use formal English and legal terminology. I am not at all convinced that the presence of interpreters could or should have given Robinson confidence that the Chiefs understood the concepts of discretion, royal prerogative, or Her Majesty's graciousness, if such concepts had been embedded into the Treaties. And, therefore, such concepts could not have informed the common intention of the parties.

(Stage One reasons, at paras. 446-47) [ 168 ] The minority of the Court of Appeal concluded that this finding of the trial judge involved a misapprehension of the evidence and was inconsistent with her other findings (para. 432). The minority correctly noted that Elder Corbiere had not testified that there was no way to translate "as Her Majesty may be graciously pleased to order". Instead, she had testified that it meant that Her Majesty would be "generous". As the minority explained: > The trial judge said that the witness, Elder Corbiere, who translated the Treaties from English to Anishinaabemowin and then back to English, testified that there was no way to translate "as Her Majesty may be graciously pleased to order". In fact, Elder Corbiere testified that she translated the phrase to mean "and even more will be given to the Anishinaabek if the Gischpin Gchi-Gimaa Kwe ['Big Chief Lady'] has a good heart and has a mind to do so." Elder Corbiere testified that while she could not translate "graciously", the Anishinaabe expected leaders to be generous. The translation that she provided"if [the Queen] has a good heart and has a mind to do so", reasonably conveys the meaning of "as Her Majesty may be graciously pleased to order".

(para. 433, citing Stage One reasons, at para. 446) [ 169 ] In my view, the minority's conclusions are supported by Elder Corbiere's evidence. In her translation of the Robinson Treaties into Anishinaabemowin, Elder Corbiere noted that the expression "as Her Majesty may be graciously pleased to order" could not be precisely translated into Anishinaabemowin, but the Anishinaabe would have understood that Her Majesty ("Gchi Gimaa Kwe", or the "Big Chief Lady") would be "generous" and would decide according to the principles of respect, love, and honesty. Her comments on this important point are worth quoting in full: > William Benjamin Robinson, the one who is standing in for the Gchi Gimaa Kwe, who wishes to deal fairly with the Anish[i]naabek and will be fair and be good to them, also plans that if they make money from the land, the one in charge of the Province (there is no Anishinaabe word for province) will increase the money given out yearly, only if they will not lose money; and the money will be increased from time to time by this much: an amount worth one English money (there is no Anish[i]naabe word for pound), and even more will be given to the Anish[i]naabek if the Gchi Gimaa Kwe has a good heart and has a mind to do so. (The expression "as Her Majesty may be graciously pleased to order" is not possible to translate exactly into Anish[i]naabemowin. I am told it is a legal/governance phrase regarding decisions by the Queen. Anishinaabek would understand that Gchi G[i]maa Kwe would be generous (gizhewaadzi) and decide according to the principles of Respect (Mnaadendimowin), Love (Zaagidwin), and Honesty (Gwekwaadziwin).) [Emphasis added; emphasis in original deleted.]

(Huron plaintiffs' Condensed Book, at pp. 53-54) [ 170 ] Elder Corbiere's oral testimony during her examination-in-chief confirmed the written translation she had provided to the court: > BY MR. NAHWEGAHBOW:

Q. So you've provided the translation, how would that have been understood by the Anishinaabe?

A. Well, graciously pleased. "Graciously pleased", I could not translate that into –– "graciously" what the word "graciously" meant. I don't know if it's an expression when you address the Queen, be a gracious lady.

And the way the Anishinaabek lived, with the Seven Teachings, to be generous, to be kind, to be truthful, and all those good teachings, good heart teachings that were given to us, if they lived those, then they would also expect the –– then they expect the leader, the Queen, to be living the same way. We have the same beliefs, because she is the main leader of Anishinaabek.

And in the same way, the Anishinaabek expected the Queen to be the same way as their beliefs, that she would show love, according to the principles of respect, Mnaadendimowin; Zaagidwin, love; and honesty, that she would do right by the people. [Emphasis added.]

(Huron plaintiffs' Condensed Book, at pp. 62-63) [ 171 ] Plainly, if Elder Corbiere's evidence were taken as suggesting that the Anishinaabe did not understand the idea of discretion, then the trial judge would have made a palpable and overriding error in concluding that the idea of the Crown's discretion could not have formed part of the common intention of the parties. The Court of Appeal majority, however, did not read the trial judge's finding that way. The majority accepted that "the trial judge was palpably wrong" in writing that the Anishinaabe did not understand the idea of discretion, because "Robinson successfully conveyed the concept of Crown discretion at the Treaty Council" (para. 219). But the majority also found that the trial judge "simply misspoke" (para. 221), and thus concluded that her error was not overriding. She had meant to say that the Anishinaabe would not have understood the concept of discretion as it was known to English lawyers. (The analysis of the third and fourth interpretations, the five points detracting from the third interpretation, and the conclusion on the proper interpretation of the Augmentation Clause continues at paras. 172–197.) --- ### D. Limitations Issues [ 203 ] Ontario has also suggested that this Court need not address limitations issues if it grants only declaratory relief in relation to the breach of treaty claims (A.F., at para. 121). For its part, Canada notes that "limitations statutes cannot prevent courts from issuing a declaration on the constitutionality of Crown conduct" (R.F., at para. 54, citing Manitoba Metis). In oral argument before this Court, Ontario's counsel added that he was not "strenuously" arguing that the plaintiffs' claims are statute-barred by a limitation period (transcript, day 1, at p. 51). Even so, I will address Ontario's limitations arguments in order to confirm the parties' continuing rights and obligations under the Robinson Treaties. As I will explain, the plaintiffs' breach of treaty claims are neither "actions on the case" nor "actions of account". As a result, their claims are not statute-barred by the 1990 Limitations Act. (The limitations analysis continues at paras. 204–217.) --- ### E. The Crown's Obligation To Diligently Implement the Augmentation Clause [ 223 ] The trial judge held that the Crown owes an ad hoc fiduciary duty to the Huron and Superior plaintiffs regarding the Augmentation Clause because it "undertook to act exclusively in the best interest of the Treaties' beneficiaries" when engaging in a process to determine if an increase to the annuities was warranted (Stage One reasons, at para. 519; see also para. 525). She found, however, that the Crown does not owe a sui generis fiduciary duty in relation to the treaty promise, because "there was no Crown undertaking of discretionary control over the Anishinaabe's interest in land" (para. 511). [ 224 ] Writing for a unanimous Court of Appeal on this point, Hourigan J.A. held that the trial judge erred in law in finding that the Crown owes an ad hoc fiduciary duty. There was no evidence that the Crown agreed to act solely in the best interests of the treaty beneficiaries regarding procedural matters stemming from the Augmentation Clause. Such a duty, Hourigan J.A. concluded, would put the Crown in an inevitable conflict of interest by requiring the disclosure of confidential budgetary, land use, and other information relevant to its decision making about possible increases (paras. 608-9). Concerning the sui generis fiduciary duty, Hourigan J.A. agreed with the trial judge that no such duty arose (para. 585). In his view, the treaty rights were "not sufficiently independent of the Crown's executive and legislative functions to ground a cognizable Aboriginal interest", and "there was no evidence of a Crown undertaking of discretionary control" over such an interest (paras. 583-84). (The analysis of fiduciary duties, the duty of diligent implementation, and the conclusion continues at paras. 225–264.) [ 255 ] Over the years, the Crown set aside some land for the Métis descendants, but errors and delays ensued. Allotments were abandoned, distributions of land became random, and speculators began acquiring Métis land through legal loopholes. In 1981, the Manitoba Metis Federation and individual Métis claimants sued the attorneys general of Canada and Manitoba for declarations that the Crown had breached a fiduciary duty owed to the Métis in implementing the Manitoba Act, 1870 and had failed to implement the land grant promise consistently with the honour of the Crown. Both the trial judge and the Manitoba Court of Appeal dismissed the action. [ 256 ] This Court unanimously found that no fiduciary duties arose out of the Crown's promises to the Métis in s. 31 of the Manitoba Act, 1870. Writing for the majority, McLachlin C.J. and Karakatsanis J. nevertheless ruled that the Métis were entitled to a declaration that the Crown had failed to act diligently in implementing the land grants. This duty flowed directly from the honour of the Crown and required the Crown to take a broad purposive approach to the interpretation of the land grant promise and to act diligently to fulfill it (para. 75). [ 258 ] The Crown's duty to ensure that its obligations are fulfilled requires that the Crown "seek to perform the obligation in a way that pursues the purpose behind the promise" to avoid leaving Indigenous parties with an empty shell of a promise (para. 80). It is a "narrow and circumscribed duty" which, in Manitoba Metis, was said to be "engaged by the extraordinary facts before us", namely, a "persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown's duty to act honourably in fulfilling its promise" (paras. 81-82). The majority found that the prompt and equitable implementation of the land grant promise was fundamental to reconciliation, which the Crown's mistakes and inaction had prevented. In the majority's view"[a] government sincerely intent on fulfilling the duty that its honour demanded could and should have done better" (para. 128). The Court ultimately issued a declaration that the federal Crown had failed to implement the land grant provision in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown (para. 154). --- ### F. The Remedy for the Crown's Failure To Diligently Implement the Augmentation Promise [ 266 ] The trial judge held that implementing the treaty promise requires the Crown to engage in a consultative process with the beneficiaries and pay an increased annuity, reflecting what she called a "fair share" of the proceeds of the territory. She rejected Ontario's submission that a declaration simply stating that the Crown was under an obligation to act honourably to fulfill the purpose of the Robinson Treaties would sufficiently restore the treaty relationship and the Crown's honour (Stage One reasons, at para. 496). [ 267 ] The majority of the Court of Appeal (per Lauwers and Pardu JJ.A., Hourigan J.A. concurring) ruled that it was reasonable for the trial judge to have no confidence that a simple declaration would trigger good faith negotiations (para. 276). They encouraged the parties to "negotiate, rather than litigate, the remaining issues", including remedies (para. 327). They noted that negotiations allow the court to step back from "[c]lose judicial management" that "may undermine the meaningful dialogue and long-term relationship that these treaties are designed to foster" (para. 328, citing First Nation of Nacho Nyak Dun, at para. 60). Negotiated agreements, they added, would also create precision, continuity, transparency, and predictability in the treaty relationship and would be afforded judicial deference (para. 329). [ 269 ] Although Ontario now concedes that it has breached its constitutional duties under the Robinson Treaties, it argues that only declaratory relief is available for this breach. Substantive or coercive remedies, including damages, are unavailable because the honour of the Crown is not itself a cause of action (A.F., at paras. 105 and 108); substantive or coercive remedies would "naturally drive the parties into an adversarial relationship" (para. 111); and declaratory relief would be consistent with the principle that "decisions about the allocation of public resources belong to legislatures and to the executive", not the courts (para. 113, citing Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), 2005 SCC 44, [2005] 2 S.C.R. 286, at para. 20). In these circumstances, Ontario says, a declaration that the Crown must exercise its discretion consistently with the honour of the Crown, and that this discretion is subject to review by the courts, is an appropriate and effective remedy. [ 270 ] Canada and the Huron and Superior plaintiffs say that substantive or coercive remedies, including damages, are available here and should be determined at Stage Three. According to the Huron plaintiffs, the choice of remedy should be informed by whether it serves to repair the treaty relationship, restore the honour of the Crown, and give effect to the parties' shared understanding of the treaty (R.F., at para. 115). The Superior plaintiffs add that a monetary award is consistent with reconciliation and that awarding compensation after identifying losses caused by the Crown's failure to exercise its discretion is the "core work" of the court (R.F., at para. 115). In Canada's view, declaratory remedies, while available here, are unlikely to be sufficient given the longstanding and ongoing nature of the Crown's breach (R.F., at para. 44). [ 271 ] In my view, a declaration clarifying the rights and obligations of the parties is an appropriate remedy in this case, as it will inform both the future implementation of the Robinson Treaties and clarify the nature of the past breach. At the same time, given the longstanding and egregious nature of the Crown's breach of the Augmentation Clause for almost a century and a half, a declaration, while helpful, would be insufficient to renew the treaty relationship and restore the Crown's honour. The Crown must provide redress for the conceded breach of its duty. In doing so, the Crown should take into account various factors including, but not limited to, the nature and severity of the breaches, the number of Anishinaabe and their needs, the benefits the Crown has received from the ceded territories and its expenses over time, the wider needs of other Indigenous populations and the non-Indigenous populations of Ontario and Canada, and the 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. However, it is appropriate for that redress to be negotiated by the treaty partners, in a manner that is consistent with the goal of reconciliation. [ 278 ] In my view, a declaration is an appropriate remedy in that it will offer a definitive statement of the rights and obligations under the Augmentation Clause to guide the parties in negotiating compensation for past breaches and to encourage the renewal of the treaty relationship moving forward. [ 279 ] A declaration is "a judicial statement confirming or denying a legal right of the applicant. Unlike most rulings, the declaratory judgment merely declares and goes no further in providing relief to the applicant than stating his rights" (L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 1). Declaratory relief is discretionary. A court may award a declaration where "(a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought" (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11, and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46). A declaration should not be issued if it is not "capable of having any practical effect in resolving the issues in the case" (Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 833). [ 280 ] All parties agree that this Court can issue declaratory relief in this case. First, there is no question as to this Court's jurisdiction over the issues in these appeals. Second, the dispute between the parties is real and not theoretical: the parties disagree about many live issues, including the correct interpretation of the Augmentation Clause, the duties it imposes on the Crown, and the remedy for the Crown's breach of these duties. Third, although the Crown has acted dishonourably in neglecting its duties under the Augmentation Clause for close to 150 years, the long history of this litigation and the recent $10 billion settlement between the Crown and the Huron plaintiffs regarding past breaches suggest that all parties have a genuine interest in resolving the issues. Fourth, although before this Court Ontario now accepts that the appropriate remedy is a declaration stating that the Crown is required to exercise its discretion as to whether to augment the annuities, it has opposed declaratory relief of the kind sought by the plaintiffs for most of this litigation. Until recently, Ontario maintained that it had not breached the Augmentation Clause because it possessed unfettered discretion as to whether to increase the annuities beyond $4. In this sense, it has opposed a declaration recognizing its breach of the Augmentation Clause from day one. However, as this Court explained in Shot Both Sides v. Canada, 2024 SCC 12, at para. 81, the Crown's belated concession of a breach of a treaty right should not foreclose the possibility of declaratory relief. To hold otherwise would "privilege form over substance with respect to the nature of the 'real' dispute before us, and would overlook the protracted nature of the dispute that led the parties to this point" (para. 81). [ 281 ] In my view, there is considerable value in this Court providing a declaration that clarifies the Crown's obligations regarding the Augmentation Clause and recognizes that the Crown has breached those obligations. Such a declaration will be a definitive statement of rights that the treaty partners can rely on in negotiations to determine how the Augmentation Clause must be honourably implemented regarding both the past and the future (see Manitoba Metis, at para. 137). In this regard, I agree with the following observations of Justice Rowe, writing extra-judicially with Diane Shnier: > Declarations allow courts to state generally what is necessary to comply with constitutionally guaranteed treaty rights, and allow the government flexibility in how to achieve that compliance. Further, declarations about a discrete issue or aspect of an agreement may facilitate negotiation outside the litigation process, which can be particularly important in the context of treaties with Aboriginal peoples. [ 283 ] While a declaration is appropriate, I am of the view that a bare declaration, without more, is insufficient given the egregious and longstanding nature of the breaches at issue in these appeals. In these circumstances, a simple declaration would not adequately repair the treaty relationship or restore the honour of the Crown. It would not sufficiently vindicate the treaty rights or meaningfully advance reconciliation. [ 284 ] The treaties concluded between the parties were fundamentally alliances of equals founded on the principles of mutual respect, mutual responsibility, reciprocity, and renewal (Stage One reasons, at para. 423). In requiring the Crown to periodically revisit the annuity and consider increasing the amount, the Augmentation Clause embodies the parties' desire for a continually renewing bond that would keep them in a relationship with one another in perpetuity. Yet today, well over a century has passed since the Crown has turned its mind to that promise, and by extension to the renewal of the relationship itself. Ontario expresses concern that any remedy beyond a pure declaration would "drive the parties into an adversarial relationship" (A.F., at para. 111). The Superior plaintiffs respond that it is not the requested remedy that has done this, but rather the Crown's "abject failure" for almost 150 years to honour sacred treaty rights (R.F., at para. 113). I agree with the Superior plaintiffs. The Crown cannot reasonably have believed that giving its treaty partners $4 each annually since 1875 was in any way honourable. [ 287 ] Because of this, and as the trial judge observed"after 168 years of no action on the part of the Crown, the court cannot simply accept the Crown's acknowledgment of their duty of honour and permit the Crown to carry on without further direction" (Stage One reasons, at para. 492). I agree with the Huron plaintiffs that a mere declaration would risk forcing them "to continue to rely on a historically dishonourable Treaty partner to take steps to restore the Treaty relationship" (R.F., at para. 117). This would be deeply unsatisfactory and would risk leaving the Anishinaabe treaty partners with an empty shell of a promise once again. I would therefore provide additional direction to the Crown regarding the Superior plaintiffs to ensure that it exercises its discretion under the Augmentation Clause in a timely and honourable manner regarding past breaches. [ 289 ] I agree with the Superior plaintiffs that after more than a century of Crown neglect, they have the right to a remedy. I have concluded that the Crown must increase the annuity beyond $4 per person regarding the past, since it would be patently dishonourable not to do so. However, the fact of the matter is that the Augmentation Clause is not a promise on the part of the Crown to pay a certain sum of money. Rather, it is a promise to consider whether the economic conditions allow the Crown to increase the annuities without incurring loss and, if they do, to exercise its discretion and determine whether to increase the annuities and, if so, by how much. [ 290 ] The Crown must exercise this discretion liberally and justly, consistently with the honour of the Crown and the language of the treaty itself, but it retains the authority and, in the present circumstances, has the obligation to set a figure that it considers will meet those requirements. Until the Crown has exercised that discretion through honourable engagement with its treaty partners and has proposed an amount of compensation, it should generally not be judicially compelled to pay a certain sum of money to redress the harms occasioned by its neglect. Absent a settlement, the Crown will be required to explain to the Superior plaintiffs and the court how it reached its determination and why. This would permit the court to pay careful attention to the manner in which the Crown exercised its discretion, having regard to both the amount determined and the process by which it arrived at that amount, when assessing whether the Crown's determination is honourable. [ 291 ] I hasten to add that this does not mean that the Crown should never be judicially compelled to pay a certain sum of money as determined by a court. Under some circumstances, a court may decide to intervene and set the amount to be paid by the Crown. For example, a failure by the Crown to pay an honourable amount in all the circumstances should not limit a court to quashing the amount set by the Crown and remanding the issue to the Crown for redetermination. In such a case, a court may need to make a determination that the Crown refuses to make, or that it makes dishonourably. The Crown cannot be allowed to continue to undermine the very object and purpose of the treaty promise. [ 292 ] However, now that this Court has finally determined the Crown's obligations under the Augmentation Clause, and given Ontario's position before this Court that "we are listening and you are going to tell us how to approach this", it can be expected that the Crown will diligently honour its longstanding treaty promise to the Anishinaabe. In my view, given the nature of the treaty promise at issue, the Crown must be afforded a circumscribed window within which to exercise its discretion, either through honourable negotiation or by determination of the Crown if necessary. This will create space for the parties to repair and renew their treaty relationship. As this Court recognized in Haida Nation"[w]hile Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests" (para. 14). [ 293 ] Directing the Crown to exercise its discretion forthwith is also a measured approach that appropriately respects the proper role of the courts and the separation of powers. As Professor Kent Roach has explained in the context of Aboriginal rights: > . . . courts that enforce Aboriginal rights must also consider a range of other factors and competing interests. Courts should provide remedies that respect institutional roles including the limits on the judiciary. In many cases, courts are hopeful that issues can be resolved out of court by a process of consultation and negotiation. This approach is particularly attractive in the Aboriginal rights context because of its potential to allow Aboriginal nations to exercise some degree of self-determination and because of the complexity of the issues and the broad range of reasonable solutions and forms of reconciliation. At the same time, Aboriginal rights may ultimately have to be enforced by the courts, albeit in a way that respects institutional roles and is fair to all those affected. [§ 15:2] [ 294 ] Professor Roach's comments are instructive in relation to treaty rights as well. As in the Charter context, it is true here that "an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. . . . [A] court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary" (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 56). 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. I stress that courts are not incompetent or unable to entertain these considerations when necessary. Indeed, I acknowledge the jurisdiction of the courts to order compensation at Stage Three if appropriate to do so. However, I also recognize that courts are generally not well equipped to make polycentric choices or to "evaluate the wide-ranging consequences that flow from policy implementation" (Doucet-Boudreau, at para. 120, per LeBel and Deschamps JJ., dissenting; see generally Schachter v. Canada, [1992] 2 S.C.R. 679, at pp. 723-24). Accordingly, courts should exercise considerable caution before intervening in such circumstances. [ 295 ] In this regard, I am mindful that in Stage Three of this trial, argued and taken under reserve in September 2023, the Superior plaintiffs claimed damages totalling approximately $126 billion to compensate them for the Crown's past breaches of the Augmentation Clause. This figure is equivalent to approximately two-thirds of the total reported annual revenue of the province of Ontario, from all sources, in the 2022-23 fiscal year (Minister of Finance, 2023 Ontario Economic Outlook and Fiscal Review — Building a Strong Ontario Together, Background Papers (2023)). I hasten to emphasize that the magnitude of this figure in no way drives the remedy in this decision. Naturally, where the Crown has defaulted on its payment obligations for almost 150 years, the amount due will be substantial. The Anishinaabe signatories cannot now be short-changed by the Crown's sticker shock, which is solely the result of the Crown's own dishonourable neglect of its sacred treaty promises. [ 296 ] At the same time, I have concluded that the Augmentation Clause constitutes a promise on the part of the Crown to exercise its discretion as to potential increases to the annuities beyond $4 per person where it can do so without incurring loss. This discretion must be exercised honourably, but also in accordance with Her Majesty's desire "to deal liberally and justly with all Her subjects" — to do justice to the Anishinaabe treaty partners and Her Majesty's other "subjects". Accordingly, in exercising its discretion, the Crown will have to engage in complex polycentric decision making that weighs the solemnity of its obligations to the Anishinaabe and the needs of other Ontarians and Canadians, Indigenous and non-Indigenous alike. This is well within the expertise of the executive branch, but is much less within the expertise of the courts. [ 297 ] These principles concerning the proper role of the courts dovetail with the idea that "[r]econciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences" (First Nation of Nacho Nyak Dun, at para. 4). As Lamer C.J. wrote in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010"it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve . . . a basic purpose of s. 35(1) — 'the reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown'" (para. 186; see also F. Hoehn"The Duty to Negotiate and the Ethos of Reconciliation" (2020), 83 Sask. L. Rev. 1). As this Court has recognized in the duty to consult context"[t]rue reconciliation is rarely, if ever, achieved in courtrooms" (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24; see also Mikisew Cree 2018, at para. 22). [ 298 ] Even so, as my colleague Martin J. wisely observed during Ontario's oral submissions before this Court, accountability most certainly does take place in a courtroom (transcript, day 1, at p. 9). Indeed"judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance" (First Nation of Nacho Nyak Dun, at para. 34). As in the present case, litigation may sometimes be the only way to bring an intransigent party to the negotiating table with a view to reaching a settlement and advancing reconciliation. [ 299 ] Although it is not the business of the courts to force the Crown to exercise its discretion in a particular way, it is very much the business of the courts to review exercises of Crown discretion for constitutional compliance — to ensure that the Crown exercises its discretion in accordance with its treaty obligations and the constitutional principle of the honour of the Crown. It is appropriate in this case for this Court to order the government to repair the breach of its constitutional obligations, while leaving it up to the executive branch to determine the best means of doing so (see generally Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 96; Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473, [2004] 2 F.C.R. 108, at paras. 46-47, per Rothstein J.A. (as he then was)). While not a perfect analogy, a direction to this effect bears a family resemblance to an order in the nature of mandamus, insofar as it orders that discretion be exercised, without specifying exactly how (see D. J. M. Brown, J. M. Evans and A. J. Beatty, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at § 1:24; British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41, at pp. 127-28; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), at pp. 767-68, aff'd, [1994] 3 S.C.R. 1100; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, at para. 41). [ 300 ] I am also guided by the fact that the Robinson Treaties were not only about securing land in exchange for a monetary annuity. As the trial judge found"[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown" (Stage One reasons, at para. 412 (emphasis added)). For the Anishinaabe"the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances" (para. 423). The Huron plaintiffs say this best: "What the Treaty promises is . . . an 'ongoing relationship' with procedural and substantive aspects. The Crown cannot fulfill its duty by paying an arbitrary sum of money without engaging its Treaty partner" (R.F., at para. 101 (emphasis added)). The Superior plaintiffs would be deprived of the relational aspect of the treaty if Stage Three of this litigation were to proceed as currently conceived. Accordingly, even though the Crown now concedes that it has breached the Augmentation Clause, Stage Three should not proceed directly to a traditional damages calculation. [ 301 ] Of course, some may point out that the Crown has had almost 150 years to exercise its discretion and that, because of its failure to do so, compensation should now be available to the Superior plaintiffs in Stage Three immediately. Given the long history of this litigation and the dishonourable nature of the Crown's breach of treaty, I am sympathetic to this view. Yet it bears repeating that the Augmentation Clause is not a promise to pay a certain sum of money. It is a promise by the Crown to consider increases beyond $4 and, where appropriate, to exercise its discretion to increase the annuities. At this stage, a judicially calculated damages award would remove from the treaty implementation any exercise of Crown discretion and engagement between treaty partners — the very essence of the treaty promise respecting increases beyond $4. It would also fail to effectively renew the treaty relationship and restore the honour of the Crown. [ 302 ] In my view, then, a court-calculated compensation award for past breaches in relation to the Superior plaintiffs is not yet an appropriate recourse. Instead, I would direct a narrow, time-bound window for negotiation, after which the Crown is (failing a settlement) required to exercise its discretion honourably in a manner consistent with these reasons and determine an amount of compensation. Such a remedy has greater potential to fulfill the purposes of the Augmentation Clause and hold the Crown to account for its breach of the treaty to date. This limited timeline for negotiation strikes a delicate balance between ensuring the Superior plaintiffs receive compensation without extensive delay and encouraging real restoration of the treaty relationship. [ 303 ] Although I recognize that the augmentation promise does not expressly require the parties to negotiate and agree on an annuity increase, it is undeniable that negotiation and agreement outside the courts have better potential to renew the treaty relationship, advance reconciliation, and restore the honour of the Crown. After all, historic treaties represent the "establishment of a relationship of trust and mutual assistance" between Indigenous peoples and the Crown, but the details of that relationship "must be the object of permanent negotiations, in view of fleshing out the general principles governing the relations between the two peoples" (S. Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (2013), at p. 286). --- ## VI. Disposition [ 304 ] Because of the considerations discussed above, I would declare the following: 1. Under the Augmentation Clause of the Robinson Treaties, the Crown has a duty to consider, from time to time, whether it can increase the annuities without incurring loss. 2. If the Crown can increase the annuities without incurring loss, it must exercise its discretion as to whether to increase the annuities and, if so, by how much. 3. In carrying out these duties and in exercising its discretion, the Crown must act in a manner consistent with the honour of the Crown, including the duty of diligent implementation. 4. The Crown's discretion must be exercised diligently, honourably, liberally, and justly. Its discretion is not unfettered and is subject to review by the courts. 5. The Crown dishonourably breached the Robinson Treaties by failing to diligently fulfill the Augmentation Clause. 6. The Crown is obliged to determine an amount of honourable compensation to the Superior plaintiffs for amounts owed under the annuities for the period between 1875 and the present. [ 305 ] With a view to respecting the nature of the treaty promise, repairing the treaty relationship, restoring the honour of the Crown, and advancing reconciliation, I would also direct the Crown to engage meaningfully and honourably with the Superior plaintiffs in an attempt to arrive at a just settlement regarding past breaches. If such a settlement cannot be mutually agreed upon, the Crown will be obliged, within six months of the release of these reasons, to exercise its discretion and determine an amount to compensate for past breaches. Given that the Superior plaintiffs have now been waiting almost a century and a half for their treaty entitlement, the amount to be paid would not be stayed pending any potential review by the courts, and should be paid to the Superior plaintiffs within a reasonable period of time sufficient to allow for the necessary legislative approvals. [ 306 ] To allow for the parties to take steps aimed at reconciliation and repairing the treaty relationship, I would also order that the stay imposed in respect of the Stage Three proceedings continue for an additional six months from the release of these reasons. If the Superior plaintiffs desire additional time to arrive at an honourable settlement with the Crown, it would be open to them to seek a further extension of the stay in the trial court. Given the long history of this litigation and the Crown's dishonourable conduct, it will not be open to the Crown to seek such an extension if opposed by the Superior plaintiffs. If a further extension is granted, the Crown will have until the expiry of that extension to come to a negotiated agreement or to determine an amount of compensation. [ 307 ] If a negotiated settlement regarding the past is not reached, the Superior plaintiffs may seek review before the courts of both the process the Crown has undertaken and the substantive amount it has determined as compensation. If Stage Three proceeds, it must of course be modified in accordance with these reasons. [ 308 ] If the Crown has exercised its discretion liberally, justly, and honourably in determining compensation in respect of the past breaches, then the courts should not intervene. A reviewing court should allow the Crown, as decision-maker, a degree of deference in relation to its exercise of discretion (see Sharpe, at p. 221-22). In assessing the Crown's determination, the court must consider the Crown's submissions on how it reached its determination, and why, bearing in mind the Crown's expertise in making complex polycentric decisions and recognizing that the exercise of discretion may permit a range of honourable results. The court should focus on the justification of the Crown's determination, having regard to the honour of the Crown. [ 309 ] 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. [ 310 ] Given these directions, it should be apparent that Stage Three will not begin as an open-ended judicial assessment or quantification of damages for past breaches. Rather, Stage Three, if required, will begin as a review of the process in which the Crown has engaged and the substantive amount the Crown has determined as compensation to the Superior plaintiffs. However, if the court finds that the Crown's process or determination was not honourable, it may consider the appropriate remedy, including whether to remand the issue to the Crown for redetermination or set the amount to be paid by the Crown, lest the Crown continue to undermine the very object and purpose of the treaty promise. Although Stage Three has proceeded on the basis of an incorrect interpretation of the Robinson Treaties, it would be open to the parties to rely on some of the evidence already adduced before the trial judge to inform the court's review of the Crown's exercise of discretion. [ 311 ] I would allow Ontario's appeals in part, dismiss the Huron and Superior plaintiffs' cross-appeals, grant a declaration as set out in para. 304 of these reasons, and provide the directions set out in paras. 305-10. I would grant the Huron and Superior plaintiffs their costs of the appeals and cross-appeals on a solicitor-client basis. --- Appeals allowed in part and cross-appeals dismissed. --- ## Solicitors Solicitors for the appellants/respondents on cross-appeal the Attorney General of Ontario and His Majesty The King in Right of Ontario: Lenczner Slaght, Toronto; Ministry of the Attorney General — Crown Law Office — Civil, Toronto. Solicitors for the respondents/appellants on cross-appeal Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850: Nahwegahbow Corbiere, Rama, Ont.; Arvay Finlay, Victoria. Solicitors for the respondents/appellants on cross-appeal the Chief and Council of the Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, and the Chief and Council of the Whitesand First Nation, on behalf of the Whitesand First Nation Band of Indians: Duboff Edwards Schachter Law Corporation, Winnipeg. Solicitor for the respondent the Attorney General of Canada: Attorney General of Canada — Department of Justice Canada, Ottawa. Solicitors for the intervener the Attorney General of New Brunswick: Cox & Palmer, Saint John. Solicitors for the intervener the Biigtigong Nishnaabeg First Nation (also known as the Begetikong Anishnabe First Nation or the Ojibways of the Pic River First Nation): Stockwoods, Toronto. Solicitors for the intervener the Halfway River First Nation: Devlin Gailus Watson, Victoria. Solicitors for the intervener the Federation of Sovereign Indigenous Nations: Maurice Law, Calgary. Solicitors for the intervener Atikameksheng Anishnawbek: Maurice Law, Calgary. Solicitors for the intervener Manitoba Keewatinowi Okimakanak Inc.: Jerch Law, Winnipeg. Solicitors for the intervener the Carry the Kettle Nakoda Nation: Maurice Law, Calgary. Solicitors for the intervener the Assembly of Manitoba Chiefs: Fox, Calgary. Solicitors for the intervener the Anishinabek Nation: First Peoples Law, Ottawa. Solicitors for the interveners Teme-Augama Anishnabai and the Temagami First Nation: First Peoples Law, Vancouver. Solicitors for the interveners the Union of British Columbia Indian Chiefs, the Nlaka'pamux Nation Tribal Council, the Chawathil First Nation, the High Bar First Nation, the Neskonlith Indian Band, the Penticton Indian Band, the Skuppah Indian Band and the Upper Nicola Band: Mandell Pinder, Vancouver. Solicitors for the intervener the Indigenous Bar Association in Canada: Pape Salter Teillet, Toronto. Solicitors for the intervener the West Moberly First Nations: Camp Fiorante Matthews Mogerman, Vancouver. Solicitors for the intervener the Athabasca Tribal Council Ltd.: Thompson, Laboucan & Epp, Edmonton. Solicitors for the intervener the Tsawout First Nation: DGW Law Corporation, Victoria. Solicitors for the intervener the Kee Tas Kee Now Tribal Council: Olthuis, Kleer, Townshend, Toronto. Solicitors for the interveners the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation: Olthuis, Kleer, Townshend, Toronto. Solicitors for the intervener the Grassy Narrows First Nation: Cavalluzzo, Toronto. Solicitor for the intervener the Assembly of First Nations: Assembly of First Nations, Ottawa. Solicitors for the intervener the Namaygoosisagagun Community (who refer to themselves as the Namaygoosisagagun Ojibway Nation): Falconers, Toronto. --- ## Footnotes [^1]: The designation "Huron plaintiffs" will be used to refer to the respondents/cross-appellants Mike Restoule et al. The term "Superior plaintiffs" will be used to refer to the respondents/cross-appellants Red Rock First Nation and Whitesand First Nation et al. The terms "plaintiffs" or "Anishinaabe plaintiffs" will be used to refer to both groups together. [^2]: There exist several versions of the text for the two Robinson Treaties. The wording used in these reasons comes from the following source, which is the same source relied upon by the parties and by the courts below: Canada, Indian Treaties and Surrenders: From 1680 to 1890 — In Two Volumes (1891), vol. I, at pp. 147-52. Although there are slight differences in wording as between the Robinson-Huron Treaty and the Robinson-Superior Treaty, no party has suggested those differences are material to the present appeals. Accordingly, for simplicity, the text from the Robinson-Superior Treaty will be referred to throughout these reasons. --- ## Appendix: Text of the Robinson Treaties (The appendix reproduces the full text of the Robinson-Huron Treaty (1850) and the Robinson-Superior Treaty (1850), including all reserve schedules.) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.