On November 5th, 2021 the Ontario Court of Appeal released its decision in Restoule v Canada (Attorney General). The Court largely upheld the findings of the trial judge that Canada and Ontario are required to negotiate the issue of modern annuity levels with its First Nation treaty partners in the Robinson Huron and Robinson Superior treaties. The current annuity has not changed since the 1870s. On several occasions the court quoted with approval Michael’s analysis of the nature and implications of the historic treaties. In short, Michael has written that those treaties were established on the premise that they would create a fair and sustainable relationship between the treaty partners. They should be implemented and interpreted with that in mind.
At paragraph 501 of the decision, for example, Chief Justice Strathy and Brown JA quoted Michael as follows:
As Professor Coyle puts it:
The inescapable context of every historical land treaty in what is now Canada is that both treaty partners needed an arrangement under which the future of their peoples could be secured in the face of inevitable changes to come. And, in every case, what the parties sought was a consensual arrangement for coexistence, one based on reciprocal commitments and understandings. Accepting these premises means a third principle must inevitably form part of the normative order created by the historical land treaties. That is, in entering into a relationship expected to endure indefinitely, the historical treaty partners would be prepared, in the face of significant changes in circumstances over time, to negotiate, in good faith, a new consensus as to how their treaty understandings should be renewed to address both sides’ contemporary needs and interests in relation to the treaty lands.
The full set of judgments in the case can be found at:
Restoule v Canada 2021 ONCA 779