Scott Robertson

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

This appeal considered whether the Crown’s duty to consult Indigenous peoples can be fulfilled through the National Energy Board process for a pipeline modification.

The Court held that the Board’s approval decision was Crown conduct that engaged the duty to consult, and that the Crown may rely on a regulatory process where statutory powers and process are sufficient.

On the facts, the Court found meaningful participation, assessment of potential impacts, and accommodation conditions imposed on the proponent.

The consultation obligation was met and the appeal was dismissed.