SPECIAL REPORT

Treaty Interpretation in the Age of Restoule

Restoule Special Report Cover

After over a century of attempts to compel the Crown to honour the 1850 Robinson-Huron and Robinson-Superior Treaties, Anishinaabe Plaintiffs in the Restoule Case have made advancements in Ontario courts in the re-consideration and re-interpretation of these foundational historic treaties. 

At issue in the most recent years of the litigation has been the “augmentation” clause relating to treaty annuities; more specifically, the Crown’s failure to increase the annuity payments.

The Special Report begins with a discussion between Rachel Arsenault and Ogimaa Duke Peltier on the context of that failure, the rationale for litigation, and attempts to bring Indigenous protocols into the court. In “Interpreting Historic Treaties: Restoule at the Ontario Court of Appeal,” Tejas Madhur, Blair Feltmate, and Brianna McCann offer an overview of the legal history that was outlined in the trial decision and on appeal. They provide a more precise look at how the Ontario Court of Appeal applied a textual analysis of the historical promises of the Robinson Treaties.

In “Trial by Ishkode: Treaty Remedies in Restoule,” David Gill and Kaelan Unrau offer an analysis of the relationship between Anishinaabe and Canadian law that comes to a confluence of sorts in the Restoule case. Lastly, this Special Report ends with a Conclusion by Robert Janes, Q.C. who illustrates that with Restoule, there is a change; it marks a departure from the colonial vision of treaties towards a re-interpretation that could result in a genuine engagement with Indigenous perspectives on historic treaties in the courts.

KEY QUESTIONS

Does the Restoule Case change how historic treaties are interpreted in Canada?

What does the Restoule Case represent for other treaties with annuity clauses?

How might Anishanaabe legal concepts, such as ishkode, inform the way in which the treaty relationship is approached in the Canadian courts?

What legal remedies does Canadian law recognize for the breach of a treaty...in the case of treaties made between the Anishinaabeg and the Crown, how might Anishinaabe legal concepts, such as ishkode, inform the way in which the treaty relationship is approached in the Canadian courts?

- David taylor gill & kaelan unrau

AUTHOR & EDITOR

Christina Gray

Christina Gray

Dene and Ts’msyen citizen

AUTHOR

Blue Square

Rachel Arsenault

Indigenous Kwe (Ojibwe and Odawa), Wiikwemkoong Unceded First Nation

AUTHOR

Tejas Madhur

Tejas Bahaar Virdi Madhur

AUTHOR

Blair Feltmate

Blair Feltmate

AUTHOR

Robert Janes

Robert Janes Q.C.

AUTHOR

Hayden King Headshot

Hayden King

Anishinaabe, Beausoleil First Nation

AUTHOR

Blue Square

David Taylor Gill

Cree, Norway House

AUTHOR

Kaelan Unrau

Kaelan Unrau

Cree, Norway House

AUTHOR

Brianna McCann

Brianna McCann

AUTHOR

Blue Square

Jean Marshall

Anishinaabe, Kitchenuhmaykoosib Inninuwug First Nation, Treaty 9