



COURT OF APPEAL FOR ONTARIO

CITATION: Restoule v. Canada (Attorney General), 2021 ONCA
    779

DATE: 20211105

DOCKET: C66455 & C68595

Strathy C.J.O.,
    Lauwers, Hourigan, Pardu and Brown JJ.A.

BETWEEN

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

Plaintiffs

(Respondents)

and

The Attorney General
    of Canada
,
the Attorney General of Ontario
and
Her Majesty the
    Queen in Right of Ontario

Defendants

(
Appellants
/
Respondent
)

and

The Red Rock First
    Nation and the Whitesand First Nation

Third Parties

(Respondents)

AND BETWEEN:

The Chief and Council
    of Red Rock First Nation, on behalf of the Red Rock First Nation Band of
    Indians, the Chief and Council of the Whitesand First Nation on behalf of the
    Whitesand First Nation Band of Indians

Plaintiffs

(Respondents)

and

The Attorney General
    of Canada
, and
Her Majesty the Queen in Right of Ontario
and
the
    Attorney General of Ontario as representing Her Majesty the Queen in Right of
    Ontario

Defendants

(
Appellants
/
Respondent
)

Lisa La Horey, Christine Perruzza, Sarah Valair, Mark
    Crow, Insiyah Kanjee, Richard Ogden, Julia Mc Randall and Kevin Gray, for the
    appellants the Attorney General of Ontario, Her Majesty the Queen in Right of
    Ontario, and the Attorney General of Ontario as representing Her Majesty the
    Queen in Right of Ontario (C66455 & C68595)

Catherine Boies Parker, Q.C., David Nahwegahbow, Dianne
    G. Corbiere, Christopher E.J. Albinati, Daniel G. McCoy and Alexander Kirby,
    for the respondents 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 (C66455 & C68595)

Harley I. Schachter and Kaitlyn E. Lewis, for the
    respondents the Red Rock First Nation, the Whitesand First Nation, the Chief
    and Council of 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 (C66455 & C68595)

Glynis Evans and Scott Warwick, for the respondent the
    Attorney General of Canada (C66455 & C68595)

Brian Gover and Spencer Bass, for the intervener the Biigtigong
    Nishnaabeg First Nation (C66455 & C68595)

Adam S.R. Williamson and Stuart Wuttke, for the
    intervener the Assembly of First Nations (C66455 & C68595)

Thomas Slade and Cory Giordano, for the intervener the
    Blood Tribe (C66455)

Scott Robertson, for the intervener the Indigenous Bar
    Association of Canada (C66455)

Halie Bruce, for the intervener the Union of British
    Columbia Indian Chiefs (C66455)

Heard: April 13, 20-23 and 26-28, 2021; June 1-3, 2021

On appeal from the judgments of Justice Patricia C.
    Hennessy of the Superior Court of Justice, dated June 17, 2019, with reasons
    reported at 2018 ONSC 7701, 431 D.L.R. (4th) 32, and 2018 ONSC 7712 (C66455).

On appeal from the judgments of Justice Patricia C.
    Hennessy of the Superior Court of Justice, dated June 26, 2020, with reasons
    reported at 2020 ONSC 3932, 452 D.L.R. (4th) 604 (C68595).





Paragraph



Reasons of the Court

[1]



I. Joint Reasons of the Court

[1]



Overview

[1]



Facts

[10]



Historical
        Context

[10]



Pre-Treaty
        Events

[32]



The
        Robinson Treaty Negotiations

[43]



The Terms
        of the Robinson Treaties

[60]



The
        Post-Treaty Payment of the Annuities

[64]



The
        Trial Judge’s Reasons

[69]



Trifurcation of the Case

[69]



The Stage
        One Decision

[70]



The Stage
        Two Decision

[82]



Disposition
        of the Appeals

[84]



II. Reasons of Lauwers and Pardu
        JJ.A

[98]



Introduction

[98]



Issue
        One: Did the Trial Judge Err in Her Interpretation of the Augmentation Clause
        in the Treaties?

[103]



The
        Treaty Text to Be Interpreted

[104]



The
        Governing Principles of Treaty Interpretation

[105]



The
        Trial Judge’s Interpretation of the Augmentation Clause

[115]



The Governing Principles Applied

[123]



Issue
        Two: Did the Trial Judge Err in Finding that the Doctrine of the Honour of the
        Crown Obliges the Crown to Increase the Annuities as Part of its Duty to
        Diligently Implement the Treaties?

[231]



The
        Governing Principles Concerning the Honour of the Crown

[232]



The
        Trial Judge’s Reasons

[243]



The
        Position of Ontario on the Honour of the Crown

[246]



The
        Position of Canada on the Honour of the Crown

[248]



The Principles Concerning the Honour of the
        Crown Applied

[249]



Issue
        Three: Did the Trial Judge Err in Finding There Was No Implied Term for the
        Indexation of the Annuities?

[259]



The
        Trial Decision on Indexation

[260]



Analysis

[264]



Issue
        Four: Did the Trial Judge Err in Her Approach to Remedies?

[271]



Ontario’s
        Arguments

[277]



The
        Language of the Judgments

[278]



The
        Definition of Net Crown Resource-Based Revenues

[282]



The “Fair
        Share” Formulation

[287]



Observations
        on Stage Three

[326]



Issue
        Five: Did the Trial Judge Err in Her Costs Award for the Stage One Proceedings?

[334]



The
        Trial Decision on Costs

[339]



Analysis

[342]



Disposition

[360]



III. Reasons of Strathy C.J.O. and
        Brown J.A.

[361]



Introduction

[361]



The
        Trial Judge’s Interpretation of the Treaties

[364]



Principles
        of Treaty Interpretation

[388]



Standard
        of Review

[389]



Position
        of the Parties

[389]



Analysis

[393]



Conclusion

[411]



Analysis
        of the Trial Judge’s Interpretation of the Treaties

[412]



First
        Error: Failing to Consider the Plain Meaning of the Treaties’ Text

[419]



Second
        Error: Finding Ambiguity Where There Was None

[436]



Third
        Error: Going Beyond What Was Possible on the Language of the Treaties

[445]



Fourth
        Error: Failing to Consider the Only Interpretation that Reconciled Both
        Parties’ Intentions

[451]



Reconciling
        the Parties’ Intentions in a Manner Consistent with the Historical Record

[459]



Conclusion
        on Treaty Interpretation

[488]



The
        Honour of the Crown

[493]



The
        Principles of the Honour of the Crown

[493]



The
        Crown’s Obligation to Honourably and Diligently Implement the Robinson Treaties

[498]



Disposition

[505]



IV. Reasons of Hourigan J.A.

[508]



Introduction

[508]



Analysis

[521]



Standard
        of Review

[521]



Fiduciary
        Duty

[581]



Crown Immunity

[629]



Limitations
        Defence

[632]



Disposition

[663]



APPENDIX “A”: Amended Stage
        One Judgments



By the Court:

A.

Overview

[1]

In 1850, the Anishinaabe on the northern shores of Lake Huron and Lake
    Superior entered into two Treaties with the Crown providing for the cession of
    a vast territory in northern Ontario. As part of the Treaties, the Crown agreed
    to pay a perpetual annuity to the Anishinaabe. This litigation centres on the
    nature of that obligation.

[2]

The plaintiffs, who are beneficiaries of the Treaties, instituted two
    actions against Canada and Ontario seeking declaratory and compensatory relief
    related to the interpretation, implementation and alleged breach of the Treaties
    annuity provisions. The actions, which are being tried together, have been
    divided into three stages: Stage One involved the interpretation of the Treaties;
    Stage Two considered the Crowns defences of Crown immunity and limitations;
    and Stage Three, which has yet to take place, will determine remaining issues,
    including damages and the allocation of liability between Canada and Ontario. The
    appeals before this court are from the partial judgments resulting from the
    Stage One and Stage Two decisions.

[3]

In her decision on Stage One, the trial judge held that the Crown has a
    mandatory and reviewable obligation to increase the Treaties annuities when
    the economic circumstances warrant. To carry out that obligation, the trial
    judge found that the Crown must: (i) engage in a consultative process to
    determine the amount of net Crown resource-based revenues from the territories;
    and (ii) pay an increased annuity amount, reflecting a fair share, if there
    are sufficient Crown resource-based revenues to allow payment without incurring
    loss
.
The trial judge further determined
that the principle of the honour of the Crown and the
    doctrine of fiduciary duty impose on the Crown the obligation to diligently
    implement the purpose of the Treaties promise.

[4]

In her decision on Stage Two, the trial judge held that Crown immunity
    and provincial limitations legislation did not operate to bar the claims.

[5]

Ontario appeals. Ontario argues that the trial judge erred in her
    interpretation of the Treaties and in rejecting its defences of Crown immunity
    and limitations.

[6]

The appeals raise several issues. To address these issues, we are
    issuing both these joint reasons by the court (contained in section I of the
    reasons) and three sets of individual reasons by (i) Lauwers and Pardu JJ.A.
    (contained in section II), (ii) Strathy C.J.O. and Brown J.A. (contained in
    section III), and (iii) Hourigan J.A. (contained in section IV).

[7]

The joint reasons provide the factual background to the case and
    summarize the courts conclusions on the issues arising in the appeals. As we
    explain, we unanimously reject the majority of the arguments raised on appeal.
    We dismiss Ontarios appeal from the Stage Two proceedings in its entirety and
    grant the appeal from the Stage One proceedings in part, though we part company
    on whether the trial judge erred in her interpretation of the Treaties and the
    appropriate remedy.

[8]

The three sets of individual reasons address in greater detail the
    particular issues arising in the appeals and provide the rationale and analysis
    behind our disposition of the various issues.

[9]

We begin first by reviewing the facts of this case and the trial judges
    reasons.

B.

Facts

(1)

Historical Context

(a)

The Anishinaabe of the Upper Great Lakes

(i)

Territory and Language

[10]

The
    beneficiaries of the Robinson-Huron Treaty and Robinson-Superior Treaty (the Robinson
    Treaties or the Treaties) are known as the Anishinaabe of the upper Great
    Lakes. They are members of several First Nations who historically inhabited and
    continue to inhabit the north shores of Lake Huron and Lake Superior. Today,
    the beneficiaries of the Robinson Treaties live on and off reserve.

[11]

At
    the time the Treaties were made in 1850, the Anishinaabe of the upper Great
    Lakes occupied and harvested a territory stretching eastward from the vicinity
    of present-day Thunder Bay, across the northern shores of Lake Superior and
    Lake Huron, to Lake Temiskaming, on the present-day border between Ontario and
    Quebec. The Robinson Treaties cover a territory that includes the current
    communities of Thunder Bay, Sault Ste. Marie, Sudbury, and North Bay, among
    others.

[12]

Within
    this territory, the Anishinaabe were organized in Bands, occupying discrete
    territories. Bands considered their territories to be communal property. Band
    members spoke various dialects of Anishinaabemowin, the language of the
    Anishinaabe.

(ii)

Governance

[13]

The
    Anishinaabe have their own systems of governance. At trial, Elder Fred Kelly
    described two of the organizing principles of Anishinaabe law and governance:
pimaatiziwin
and
gizhewaadiziwin
.
Pimaatiziwin
is the principle that
    everything is alive and sacred.
Gizhewaadiziwin
, the way of the
    Creator, encompasses the seven sacred laws of creation. Anishinaabe governance
    also includes values of trust, responsibility, reciprocity, and renewal, and
    the understandings that the world is deeply interconnected, and that people
    must rely on one another to thrive.

[14]

Ishkode
,
    or fire, is also central to Anishinaabe governance and politics. In the Great
    Lakes region,
ishkode
could refer to the place where a family lived,
    to small or large gatherings, or even to an entire nation. Council fire could
    refer to the location where meetings were held and where decisions and
    agreements were made. The Anishinaabe had a complex network of council fires,
    which were hosted by an
Ogimaa
(a Chief or leader).
Ogimaa
were characterized by their prior accomplishments and were expected to be
    responsible for and generous to their people.
Ogimaa
were not rulers;
    the Anishinaabe decision-making process was deliberative and consensus based.

[15]

The
    trial judge found that the Anishinaabe system of governance within the Treaty
    territories was continuous and longstanding.
[1]

(b)

The Relationship Between the Anishinaabe and Colonial Actors

(i)

The Covenant Chain Alliance

[16]

The
    relationship between the Anishinaabe and the Crown was informed by the Covenant
    Chain Alliance. While the Covenant Chain originally referred to the alliance
    between the Haudenosaunee Confederacy and the British in the early 17th
    century, the relationship later extended to Western Nations, including the
    Anishinaabe of the upper Great Lakes.

[17]

The
    Covenant Chain Alliance was symbolized by a ship tied to a tree, connected with
    rope and iron, which later became silver. The rope represented an alliance of
    equals, iron represented strength, and silver represented durability and
    beauty. The metaphor suggested that if one party was in need, they only had to
    tug on the rope to give a signal that something was amiss and all would be
    restored.

[18]

The
    westward extension of the Covenant Chain Alliance was a strategic military
    decision by the British, who sought to secure the neutrality of Western
    Nations, including the Anishinaabe, who had previously fought alongside the
    French during the Seven Years War.

[19]

The
    British were not entirely successful in their efforts. In 1763, Odawa Chief
    Pontiac, joined by Anishinaabe warriors, led an uprising against the British.
    In response, the imperial government issued the
Royal Proclamation of 1763
(the Royal Proclamation) to encourage peace, stability, and further
    settlement and development in the region.

[20]

The
    trial judge found that the Covenant Chain Alliance was a notable example of the
    cross-cultural merging of diplomatic protocols and legal orders. These shared
    protocols continued in the decades leading up to the Robinson Treaties.
[2]

(ii)

The Royal Proclamation and the Council at Niagara

[21]

The
    Royal Proclamation represented a unilateral declaration of Crown sovereignty
    over what is now Canada, while also affirming Aboriginal title and ownership of
    unpurchased lands. It represented, as the trial judge described it, a
    foundational moment in the history of Canadas relationship with Indigenous
    peoples.
[3]

[22]

The
    Royal Proclamation created rules for the purchase and sale of Indian lands to
    prevent fraud and abuse. It prohibited private individuals from purchasing
    Indian lands and stipulated that Indian lands could only be surrendered to the
    Crown at a public meeting, in exchange for compensation. Ultimately, the trial
    judge found that the motivation for and the fundamental concepts in the
    Robinson Treaties flow from the
Royal
    Proclamation
.
[4]

[23]

After
    the Royal Proclamation was made, a Council was held at Niagara in 1764 between
    Crown representatives and over 1700 Indigenous people, including
    representatives of the Anishinaabe. At the Council, gifts and wampum belts,
    including the Great sCovenant Chain Wampum, were exchanged.

[24]

The
    Royal Proclamation and the Council at Niagara communicated to the Anishinaabe
    of the upper Great Lakes and other First Nations that their autonomy and the
    title to their lands would be maintained and protected. The Royal Proclamation
    became a crucial part of the Covenant Chain relationship between the
    Anishinaabe and the British.

(iii)

The War of 1812 (1812-1815)

[25]

As
    members of the Covenant Chain relationship, Anishinaabe warriors fought
    alongside the British in the War of 1812. Some of those warriors played
    prominent roles in the negotiation of the Robinson Treaties. One such warrior
    was Chief Shingwaukonse, a key player in the events leading up to the Robinson
    Treaties and a participant in the Robinson Treaty Council.

[26]

The
    Anishinaabe saw their military alliance with the Crown as an important part of
    the ongoing relationship.

(c)

Civilization Policy and Annuities

(i)

The Annuity Model

[27]

Beginning
    in 1818, driven by increased immigration, the Crown changed the compensation
    model for land cession treaties. It moved from a one-time lump-sum payment or
    distribution to an annuity. The assumption was that land sales to settlers
    would generate sufficient funds to finance the annual payments in perpetuity
    and allow the Crown to control its cash flow.

[28]

Annuity
    payments were structured on a population model. In 1818, the Crown set the
    annuity amount at two and a half pounds (the equivalent of $10) per person.
    This amount was used until 1850 in treaties negotiated in the southern portions
    of Upper Canada and, after 1841, in Canada West, irrespective of the size or
    value of the land ceded.

(ii)

Civilization Policy

[29]

As
    settlement and agricultural development in Upper Canada increased, and the need
    for military alliances with Indigenous communities decreased, the colonial
    government changed its Indigenous relations policy.

[30]

Until
    1820, the Indian Department was a military department, tasked with maintaining
    the Crowns military alliance with Indigenous nations. When the Crowns need
    for that alliance diminished, the departments objectives changed from military
    to civil control. A civilization policy was implemented, seeking to reclaim
    Indigenous peoples from barbarism and assimilate them into a Christian,
    agrarian life.

[31]

The
    civilization policy influenced the Crowns approach to treaty-making, and, more
    specifically, annuity payments. One result of this policy was stronger controls
    and guidelines for annuity payments, intended to prevent the misuse of the
    funds. In 1830, the Colborne Policy mandated that annuities be paid through a
    requisition system, whereby Chiefs could request items that promoted a
    sedentary, agricultural, European way of life. The Colborne Policy was in place
    during the negotiation of the Robinson Treaties in 1850.

(2)

Pre-Treaty Events

(a)

Mining in the Upper Great Lakes Region

[32]

During
    the 1840s, prospectors began exploring for valuable minerals on the south side
    of Lake Superior. Copper fever soon moved north. Despite the absence of a
    treaty with the Anishinaabe of the upper Great Lakes, in 1845 the Crown began
    to issue mining licences for the region.

[33]

The
    issuance of mining licences and the encroachment of prospecting miners onto
    their lands prompted vigorous complaints from the Anishinaabe. Between 1846 and
    1849, Anishinaabe Chiefs, including Chief Shingwaukonse, wrote petitions and
    memorials and met with government leaders to assert claims over their territory
    and to request compensation. The Anishinaabe Chiefs reminded the Crown of their
    long history of treaty-making, past promises made by the Crown to respect and
    protect their lands, and their military support of the Crown through alliances.
    The Chiefs requested compensation in various forms, including payment for
    resources already taken and those still to be taken, and a share of the
    benefits from mining.

[34]

As
    the trial judge noted, the tension generated by Crown-sanctioned mining
    exploration was one of the triggers for the negotiation of the Robinson
    Treaties.
[5]

(b)

Vidal-Anderson Commission (1849)

[35]

In
    1849, the government appointed a commission to investigate the Anishinaabe
    grievances. Provincial land surveyor Alexander Vidal and Indian Superintendent
    Thomas G. Anderson were instructed to travel to the northern shores of Lake
    Huron and Lake Superior to investigate the Anishinaabes claims to the land,
    the size and dispersion of the Anishinaabe population, and their use of their
    territory. Vidal and Anderson were also asked to assess the Anishinaabes
    expectations for a potential treaty. During their travels, Vidal and Anderson
    met with 16 of the 22 Anishinaabe Chiefs.

[36]

The
    Vidal-Anderson Commission reported on December 5, 1849. The report made several
    observations, conclusions, and recommendations, including:

·

the Anishinaabes land claim was legitimate;

·

the land was unlikely to be useful for agriculture;

·

although neither the Anishinaabe, nor the commissioners, knew the
    monetary value of the territory, its value was understood to stem from revenue
    from mining locations and surveyed lots at Sault Ste. Marie;

·

despite encountering treaty demands from the Chiefs that they
    considered unreasonable, Vidal and Anderson concluded that the Anishinaabe were
    willing to treat, provided that they could remain in their communities, that
    they could continue to hunt and fish, and that a perpetual annuity be provided
    as compensation;

·

Vidal and Anderson recommended that the Crown seek a surrender of
    the whole territory, rather than compensating the Anishinaabe only for the
    mining locations granted because:


o

the land was
      comparatively valueless;

o

some land had
      already been taken;

o

going forward,
      this would allow the government to dispose of the land without embarrassment
      (meaning without encumbrance in modern terminology); and

o

this would
      assist the Anishinaabe who were experiencing increasing scarcity of food and
      clothing;


·

Vidal and Anderson recommended that a lower than usual annuity
    should be offered, given that:

o

the lands only
    value derived from the copper deposits along the lake shores;

o

the Anishinaabe
    would retain their hunting and fishing rights, relinquishing nothing but land
    title; and

o

the Anishinaabe
    would be no poorer once they ceded the land to settlers, because trade with the
    settlers would enable them to draw wealth from their territory;

·

Vidal and Anderson strongly recommended that, after the first
    payment, subsequent payments be made in clothing, provisions, goods, and
    implements, and should include an annual appropriation for establishing and
    maintaining schools; and

·

because little was known about the value of the territory, Vidal
    and Anderson recommended including a treaty provision that would, if necessary,
    promise an increase of payment upon further discovery or development of new
    sources of wealth.

[37]

Vidal
    and Anderson proposed a compensation model that would take into account the
    discovery of new wealth in the territory. This was a new approach to
    treaty-making in Canada. While this idea had been suggested previously by
    Anishinaabe leaders, including Chief Shingwaukonse, the Vidal-Anderson Report
    is the first record of government officials engaging with it. The trial judge
    found that the Commissioners report prepared the Crown for treaty discussions
    that would require an innovative solution to bridging the gap between the
    parties expectations.
[6]

(c)

The Mica Bay Incident (1849)

[38]

The
    Anishinaabes concerns about encroachments on their traditional lands were not
    assuaged by Vidal and Andersons visit. They were frustrated by government
    inaction after three years of discussions about a diplomatic settlement to
    their claims.

[39]

While
    Vidal and Anderson travelled back to Toronto from the upper Great Lakes region,
    Chief Shingwaukonse and Chief Nebenaigoching led a party of 100 Anishinaabe to
    occupy a mining site at Mica Bay. Upon learning of the Anishinaabes march towards
    Mica Bay on November 19, 1849, Governor General Lord Elgin issued an Order in
    Council (OIC) authorizing the arrest of the participants. The Governor
    General also directed the provincial government to make a treaty with the
    Anishinaabe of the upper Great Lakes to finally resolve their outstanding
    claims.

[40]

Chief
    Shingwaukonse and Chief Nebenaigoching, along with their lawyer, Allan
    Macdonell, were arrested and brought to a Toronto jail. While in Toronto, the
    Chiefs met with William B. Robinson.

[41]

Robinson
    was a politician and a member of the Executive Council of government, and he had
    experience in the fur trade, the mining sector, and the treaty-making process.
    The trial judge noted that Robinson had excellent relations with the
    Anishinaabe and spoke some Anishinaabemowin.
[7]

[42]

Shortly
    after he met with Chief Shingwaukonse and Chief Nebenaigoching, Robinson
    offered his assistance to resolve the claims of the Anishinaabe of the upper
    Great Lakes. On January 11, 1850, the provincial government issued an OIC
    appointing Robinson as Treaty Commissioner for the negotiations.

(3)

The Robinson Treaty Negotiations

(a)

Instructions to Robinson

[43]

Robinsons
    mandate was set out in two OICs. The second, dated April 16, 1850, provided
    detailed instructions in response to Robinsons request for guidance. Robinson
    was to endeavor to secure a treaty that covered all of the territory on the
    northern shores of Lake Huron and Lake Superior on the following terms:

·

the smallest possible initial payment (less than £5000);

·

a perpetual
annuity
no higher than
    what could be generated through interest on the notional capital sum of £25,000
    less the initial payment; and

·

a provision for a deduction in the annuity if the population fell
    below 600.

[44]

As
    a bottom line alternative, Robinson was to negotiate the surrender of the
    north eastern coast of Lake Huron and the Lake Superior Coast that included the
    mining operations at Mica Bay and Michipicoten.

[45]

The
    trial judge identified two concerns likely to have influenced the limited
    financial authority given to Robinson.
[8]
First, the Government was of the view that the Anishinaabe were not giving up
    much, given that the land was not suitable for agriculture and that they would
    continue to live, hunt, and fish on the territories after a treaty was signed.
    Second, the Province of Canada was in financial crisis. Robinson was aware,
    prior to the treaty negotiations, that the amounts available to him could not
    support the standard $10 per person annuity that had been provided in other
    treaties negotiated since 1818.

(b)

The Treaty Council

[46]

The
    treaty negotiations took place over three weeks in the late summer of 1850. As
    the trial judge noted, Robinsons diary and his Official Report were the only
    documents identified at trial that provided details of the Treaty Council.
[9]

[47]

Robinson
    first met with the Superior and Huron delegations, separately, in Sault Ste.
    Marie (known to the Anishinaabe as Bawaating) and Garden River, respectively.
    Robinson met with the Superior delegation, led by Chief Peau de Chat, for
    significantly longer than he did with the Huron delegation, led by Chief
    Shingwaukonse. The two delegations then came together in Bawaating on September
    5, 1850 for the substantive treaty discussions.

[48]

The
    Treaty Council at Bawaating was conducted in Anishinaabemowin and English, and
    incorporated ceremonies and protocols characteristic of Great Lakes diplomacy.
    The trial judge noted that these ceremonies indicated that the Crown actors had
    developed a functional understanding of Anishinaabe law, diplomacy, and
    language.
[10]

[49]

Robinsons
    initial proposal regarding reasonable reservations for the Anishinaabe and
    continued hunting rights throughout the ceded territory was accepted without
    further discussion. The provisions for reserves and the protection of
    harvesting rights were, according to the trial judge, more expansive than the
    Crowns standard practice.
[11]

[50]

Robinson
    then discussed compensation. The Anishinaabe delegations preferred a perpetual
    annuity in exchange for the entire territory, rather than a lump-sum payment
    for only the existing mining locations. Given this preference, Robinson
    outlined the Crowns proposal, offering the entirety of the cash he had in
    hand: £4,000 ($16,000) in cash, and a perpetual annuity of £1,000, both amounts
    to be divided between the Superior and Huron First Nations.

[51]

Knowing
    that this proposal was lower than prior treaties, Robinson sought to justify it
    based on the unique nature of the land and other promises included in the Treaty.
    As the trial judge summarized, Robinson explained that:

·

the land was vast and notoriously barren and sterile when
    compared to the good quality lands in Upper Canada that were sold readily at
    prices which enabled the Government to be more liberal with compensation;

·

the settlers occupied the land covered by prior treaties in a way
    that precluded the possibility of Indian hunting or access to them, whereas the
    Anishinaabe would retain such rights over the lands ceded;

·

in all probability the lands in question would never be settled
    except in a few localities by mining companies; and

·

the occupation by settlers would be of great benefit to the
    Anishinaabe, who would gain a market for selling items and access to provisions
    at reasonable prices.
[12]

[52]

Chief
    Peau de Chat of the Superior delegation expressed his satisfaction with
    Robinsons initial proposal and requested a day to reply to Robinsons offer.
    Chief Shingwaukonse, from the Huron delegation, also asked for time to respond.
    The Chiefs both had to speak to their own Councils and determine their
    responses to Robinsons offer, based on consensus.

[53]

The
    next day, Chief Peau de Chat told Robinson that the Superior delegation was
    prepared to sign a treaty. Chief Shingwaukonse of the Huron delegation, on the
    other hand, was not. Chief Shingwaukonse made a counterproposal for an annuity
    of $10 per head. Robinson rejected this proposal, telling Chief Shingwaukonse
    that a majority of the Chiefs were in favour of the terms and that he was going
    to write up the Treaties on the basis approved by the Superior delegation.

[54]

After
    scrutinizing the timing of Robinsons initial offer and the Superior
    delegations response, the trial judge found that Robinsons initial offer
    included the notion of an augmentation clause.
[13]
She found that there was no other reasonable conclusion.
[14]
The proposed augmentation clause stipulated that the annuity would increase if
    revenues received from the territory permitted the government to do so without
    incurring loss.

[55]

On
    September 7, 1850, Robinson read the Robinson-Superior Treaty aloud to the
    Superior delegation. Translation services were provided. Chief Peau de Chat
    told Robinson he understood the Treaty and was ready to sign it.

[56]

Robinson
    met with the Huron delegation later that day. Chief Shingwaukonse repeated his
    counterproposal. Robinson responded with an ultimatum: those who signed the Treaty
    would receive compensation for their people, and those who did not would
    receive no such compensation and would have no treaty.

[57]

On
    September 9, 1850, Chief Shingwaukonse and Chief Nebenaigoching once again
    asked Robinson for a $10 per person annuity and raised the subject of land
    grants for the Métis. Robinson rejected their requests and had the Robinson-Huron
    Treaty read aloud to the delegation. When Chiefs Shingwaukonse and
    Nebenaigoching saw that other Chiefs in the Huron delegation were prepared to
    accept the proposed terms, they signed the Treaty.

[58]

Ultimately,
    the Robinson-Huron Treaty was substantially the same as the Robinson-Superior
    Treaty, but because the Huron population was greater the initial annuity amount
    was set at £600, whereas the Robinson-Superior Treaty stipulated £500.

[59]

Once
    the Treaties were signed, Robinson paid the Chiefs the initial sum. The
    Treaties were presented to Prime Minister Louis-Hippolyte LaFontaine on
    September 19, 1850. Robinsons final report, dated September 24, 1850, was
    delivered to Indian Superintendent Colonel Robert Bruce. An OIC, dated November
    29, 1850, declared that the Treaties were to be ratified and confirmed.

(4)

The Terms of the Robinson Treaties

[60]

The
    Robinson Treaties each have a surrender clause, a consideration clause, and an
    augmentation clause, among other terms. The trial judge set out transcriptions
    of both Treaties from an 1891 text.
[15]

(a)

The Robinson-Superior Treaty

[61]

The
    trial judge reproduced the following excerpts of the Robinson-Superior Treaty:

The Surrender Clause

[The Anishinaabe of the Lake Superior territory] from
    Batchewanaung Bay to Pigeon River, at the western extremity of said lake, and
    inland throughout that extent to the height of the land which separates the
    territory covered by the charter of the Honorable the Hudsons Bay Company from
    the said tract [and] also the islands in the said lake  freely, fully and
    voluntarily surrender, cede, grant and convey unto Her Majesty, Her heirs and
    successors forever, all their right, title and interest in the whole of the
    territory above described [except for certain reservations (three in all) set
    out in the annexed schedule].
[16]

The Consideration Clause

[F]or and in consideration of the sum of two thousand pounds of
    good and lawful money of Upper Canada to them in hand paid; and for the further
    perpetual annuity of five hundred pounds, the same to be paid and delivered to
    the said Chiefs and their Tribes at a convenient season of each summer, not
    later than the first day of August at the Honorable the Hudsons Bay Companys
    Posts of Michipicoton and Fort William....
[17]


The Augmentation Clause

The said William Benjamin Robinson, on behalf of Her Majesty,
    who desires to deal liberally and justly with all Her subjects, further
    promises and agrees that in case the territory hereby ceded by the parties of
    the second part shall at any future period produce an amount which will enable
    the Government of this Province, without incurring loss, to increase the
    annuity hereby secured to them, then and in that case the same shall be
    augmented from time to time, 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; and
    provided, further, that the number of Indians entitled to the benefit of this Treaty
    shall amount to two-thirds of their present number (which is twelve hundred and
    forty), to entitle them to claim the full benefit thereof, and should their
    numbers at any future period amount to two-thirds of twelve hundred and forty, the
    annuity shall be diminished in proportion to their actual numbers.
[18]

(b)

The Robinson-Huron Treaty

[62]

The
    trial judge reproduced the following excerpts of the Robinson-Huron Treaty:

The Surrender Clause

[The Anishinaabe i]nhabiting and claiming the eastern and
    northern shores of Lake Huron from Penetanguishene to Sault Ste. Marie, and
    thence to Batchewanaung Bay on the northern shore of Lake Superior, together
    with the islands in the said lakes opposite to the shore thereof, and inland to
    the height of land which separate the territory covered by the charter of the
    Honorable Hudsons Bay Company from Canada, as well as all unconceded lands
    within the limits of Canada West to which they have any just claim  on behalf
    of their respective tribes or bands, do hereby fully, freely and voluntarily
    surrender, cede, grant, and convey unto Her Majesty, Her heirs and successors
    for ever, all their right, title and interest to and in the whole of the
    territory above described [except for certain reservations (15 in all) set
    forth in the annexed schedule].
[19]


The Consideration Clause

[F]or and in consideration of the sum of two thousand pounds of
    good and lawful money of Upper Canada to them in hand paid, and for the further
    perpetual annuity of six hundred pounds of like money, the same to be paid and
    delivered to the said Chiefs and their tribes at a convenient season of each
    year, of which due notice will be given, at such places as may be appointed for
    that purpose.
[20]


[63]

The
    augmentation clause in the Robinson-Huron Treaty is not materially different
    from the augmentation clause in the Robinson-Superior Treaty. It states:

The Augmentation Clause

The said William Benjamin Robinson, on behalf of Her Majesty, Who
    desires to deal liberally and justly with all Her subjects, further promises
    and agrees that should the territory hereby ceded by the parties of the second
    part at any future period produce such an amount which will enable the
    Government of this Province, without incurring loss, to increase the annuity
    hereby secured to them, then and in that case the same shall be augmented from
    time to time, 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; and provided further that
    the number of Indians entitled to the benefit of this treaty shall amount to
    two-thirds of their present number, which is fourteen hundred and twenty-two,
    to entitle them to claim the full benefit thereof; and should they not at any
    future period amount to two-thirds of fourteen hundred and twenty-two, then the
    said annuity shall be diminished in proportion to their actual numbers.
[21]


(5)

The Post-Treaty Payment of the Annuities

[64]

Based
    on the population of the Anishinaabe in 1850, the annuity (£600 for the
    Robinson-Huron Treaty and £500 for the Robinson-Superior Treaty) was
    approximately $1.70 and $1.60 per person, respectively. The method of
    distribution of the annuities was slightly different as between the Superior
    and Huron beneficiaries.

[65]

Throughout
    the 1850s the Hudsons Bay Company distributed the Robinson-Superior Treaty
    annuity payments in cash to the head of each family for nearly 25 years.

[66]

Between
    1851 and 1854, the Robinson-Huron Treaty annuities were paid in goods to each
    Band. No individual cash payments were made. Beginning in 1855, the Crown paid
    the annuity, in cash, to the Robinson-Huron Treaty beneficiaries.

[67]

In
    1875, the annuity was increased to $4 (£1) per person. This was the first and
    only time the annuity has been augmented; it has not changed since. In 1877,
    the Chiefs petitioned for arrears for the period of 1850-1874, arguing that the
    economic circumstances for an increase to $4 existed long before 1875. Payment
    of arrears eventually began in 1903.

[68]

Part
    of the reason for the delay in the payment of arrears was a dispute about who
    was constitutionally required to pay them. In 1895, an arbitration panel
    determined that Ontario became responsible for paying augmented annuities after
    Confederation. Ontario appealed that decision to the Supreme Court, which
    granted the appeal.
[22]
Canadas further appeal to the Judicial Committee of the Privy Council was
    dismissed.
[23]


C.

The Trial Judges Reasons

(1)

Trifurcation of the Case

[69]

As
    noted above, the litigation surrounding the Robinson Treaties has been divided
    into three stages. Stage One proceeded by way of summary judgment motions and
    considered the interpretation of the Treaties. Stage Two, which also proceeded
    as summary judgment motions, considered Ontarios defences of Crown immunity
    and limitations. Stage Three, which has yet to take place, will determine the
    remaining issues, including damages and the allocation of liability between
    Canada and Ontario.

(2)

The Stage One Decision

(a)

Overview of the Trial Judges Decision

[70]

In
    her decision on Stage One, the trial judge held that the Crown has a mandatory
    and reviewable obligation to increase the Robinson Treaties annuities.
[24]
She found that the Crown must engage in a consultative process with the Treaty
    beneficiaries and pay an increased annuity amount, reflecting a fair share,
    if there are sufficient Crown resource-based revenues to allow payment without
    incurring loss.
[25]
The trial judge interpreted the £1 (or $4) limit in the Treaties augmentation
    clause to apply only to distributive payments to individuals, not as a limit
    or cap on the total collective annuity.
[26]

[71]

The
    trial judge also found that both the principle of the honour of the Crown and
    the doctrine of fiduciary duty impose on the Crown the obligation to diligently
    implement the purpose of the Treaties promise.
[27]
Further, the trial judge provided guiding principles for what constitutes
    relevant Crown revenues and expenses.
[28]
Finally, the trial judge rejected Ontarios submission that an indexation term
    could be implied in the Treaties.
[29]

(b)

Treaty Interpretation

[72]

The
    trial judge sought to engage in a purposive interpretation of the Treaties, to
    find the common intention of the parties, pursuant to the three steps set out
    in
Marshall
.
[30]

[73]

At
    step one, the trial judge found that the Treaties were ambiguous with respect
    to whether the annuity was a collective or an individual entitlement, and
    whether the parties intended to limit the collective annuity to £1 ($4) per
    person.
[31]

[74]

At
    step two, the trial judge considered the historical and cultural context
    leading up to the Treaties. She analyzed the perspective of the Anishinaabe and
    the Crown, as well as the post-Treaty evidence.
[32]
She concluded that the Anishinaabe understood the Treaties as an agreement to
    live in harmony with settlers and to maintain a relationship in evolving
    circumstances.
[33]
At the same time, the trial judge acknowledged that the Crown was in a dire financial
    situation but knew that it needed the consent of the Anishinaabe to fully
    access the wealth and benefits of the territory.
[34]
The trial judge also concluded that the post-Treaty record was vague and
    inconsistent and was therefore of limited assistance to understanding the
    parties common intention.
[35]

[75]

At
    step three, the trial judge laid out three possible interpretations of the
    augmentation clause, based on her understanding of the positions of the parties
    in 1850:

1.

the Crowns promise was capped at $4 per person; once the annuity was
    increased to an amount equivalent to $4 per person, the Crown had no further
    liability; or

2.

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; or

3.

the Treaties were a collective promise to share the revenues from the
    territory with the collective; the Crown was obliged to increase the lump sum
    annuity so long as the economic condition was met; the reference to $4 in the
    augmentation clause was a limit only on the amount that may be distributed to
    individuals.
[36]

[76]

The
    trial judge concluded that the third interpretation best reflected the common
    intention of the parties in 1850.
[37]
She noted that an augmentation clause linked to revenues was an innovative
    solution that reconciled the diverging expectations of the Anishinaabe and the
    Crown.
[38]
Ultimately, the Treaties were intended to renew and reinforce an ongoing
    relationship.

(c)

Crown Obligations and Discretion

[77]

The
    trial judge concluded that the principle of the honour of the Crown and the
    doctrine of fiduciary duty impose an obligation to diligently implement the
    Treaties promise to achieve their purpose.
[39]
Specifically, the trial judge held that the Crown has a duty to engage in a
    process to determine whether the annuities can be increased without incurring
    loss.
[40]
Further, the Crown does not have unfettered discretion on whether or how to
    make increases to the annuities but does maintain significant discretion in
    implementing the Treaties.
[41]

[78]

The
    trial judge found that a
sui generis
fiduciary duty did not arise from
    the Treaties promise.
[42]
However, she held that the Crown has an
ad hoc
fiduciary duty because:
    (i) the Crown undertook to act in the best interests of the Anishinaabe and had
    no other conflicting demands when engaging in a process to implement the
    augmentation clause; (ii) the beneficiaries constitute a defined class of
    persons vulnerable to the Crowns control; and (iii) the beneficiaries stood to
    be adversely affected because of the discretionary control of the Crown over
    the annuity increase.
[43]
The purpose of this duty is to facilitate supervision of the high degree of
    discretionary control assumed by the Crown over the lives of Indigenous
    peoples.
[44]

(d)

Implementation of the Treaty Promise

[79]

The
    trial judge largely left the practical aspects of implementation to Stage Three
    of the litigation. However, she provided some general principles as a starting
    point, subject to further clarification and direction from the court.
[45]
She outlined the following guiding principles to aid the parties in determining
    what constitutes relevant Crown revenues and expenses, what constitutes a fair
    share of net Crown revenues, and the Crowns duties of disclosure and
    consultation:

·

Crown resource-based revenues are those that arise directly or in
    a closely related way to the use, sale or licensing of land (including water)
    in the Treaty territory, including mineral and lumber revenues and other
    analogous revenues. Personal, corporate, and property tax revenues are not
    included;

·

Crown expenses are expenses related to collecting, regulating and
    supporting relevant revenues, but do not include the costs of infrastructure
    and institutions built with tax revenues;

·

it is impossible to gauge what a fair share of new Crown
    revenues is, but a fair share does not include the Treaty beneficiaries taking
    100 percent of the net benefits from the Crown;

·

the Crown has a duty to disclose sufficient information for the
    purpose of determining net Crown resource-based revenues; and

·

the Crown may have a duty to consult when implementing the Treaty
    promise, given that its conduct may have an adverse impact on a Treaty right.
[46]

(e)

Implied Indexation Term

[80]

The
    trial judge rejected Ontarios claim (and the Huron and Superior Plaintiffs alternative
    claim) that a term should be implied that the Treaty annuities would be indexed
    for inflation. The Huron and Superior Plaintiffs and Ontario accepted that the phenomenon
    of persistent inflation was not within the contemplation of the parties at the
    time the Treaties were signed, but argued that the parties would have included
    such a term had they known that the purchasing power of the annuities would be
    eroded over time. The trial judge found that this would effectively be
    imputing knowledge of one historical fact in the absence of the constellation
    of other historical facts.
[47]
Moreover, the effects of inflation could be addressed adequately through the
    augmentation of the annuity.
[48]
The trial judge acknowledged, however, that if an appellate court were to find
    that the augmentation clause does not operate as she found, a second look at
    the indexing claim would be necessary.
[49]


(f)

Costs

[81]

The
    trial judge awarded costs to the Huron Plaintiffs and the Superior Plaintiffs on
    a partial indemnity basis, fixed at 85 percent of their fees and 100 percent of
    disbursements.
[50]
The Huron Plaintiffs were ultimately awarded a total of $9,412,447.50 and the
    Superior Plaintiffs were awarded $5,148,894.45.

(3)

The Stage Two Decision

[82]

In
    her decision on Stage Two, the trial judge held that Crown immunity and
    provincial limitations legislation did not operate to bar the Huron Plaintiffs
    and Superior Plaintiffs claims. First, she rejected Ontarios argument that Crown
    immunity shielded the Crown from claims for breach of fiduciary duty arising
    prior to September 1, 1963, being the date of the coming into force of the
Proceedings
    Against the Crown Act
(
PACA
).
[51]
Second, she dismissed Ontarios argument that claims for treaty breaches are
    properly characterized as claims on a simple contract or a speciality, or
    as an action of account, and therefore statute barred by the former
Limitations
    Act
(the 1990
Limitations Act
).
[52]
Third, the trial judge discussed in
obiter
that, had it been necessary
    to do so, she would have held that the
Nowegijick
principles and the
    principle of the honour of the Crown applied when interpreting the Crowns
    statutory defences.
[53]

[83]

The
    trial judge accordingly granted partial summary judgment for the Huron and
    Superior Plaintiffs on the questions of limitations and Crown immunity. She
    deferred until Stage Three the issue of whether Ontario and Canada a
re jointly and severally liable or in the alternative
    whether Canada is the paymaster.

D.

Disposition of the Appeals

[84]

As
    noted at the outset, we have written these joint reasons to summarize the background
    to this case and our disposition of the appeals. Our individual reasons further
    explain the basis of our disposition of the various issues raised. These issues
    are the following:

1.

What is the standard of review for treaty interpretation?

2.

Did the trial judge err in her interpretation of the augmentation clause
    in the Treaties?

3.

Did the trial judge err in finding that the honour of the Crown requires
    the Crown to act honourably in fulfilling the Treaties promise?

4.

Did the trial judge err in finding that the Crowns discretion to
    augment the annuities is justiciable and not unfettered?

5.

Did the trial judge err in finding that the Crown is under a fiduciary
    duty regarding the augmentation clause in the Treaties?

6.

Did the trial judge err in finding that the Crown is not immune from
    breaches of fiduciary duty prior to 1963?

7.

Did the trial judge err in finding that provincial limitations
    legislation does not bar the claims for breach of the Treaties?

8.

Did the trial judge err in finding that there was no implied term for
    the indexation of the annuities?

9.

Did the trial judge err in her costs award for the Stage One
    proceedings?

10.

Did the trial judge err in her approach to remedies in the Stage One
    proceedings?

[85]

First,
    on the issue of the standard of review for treaty interpretation, Strathy
    C.J.O. and Brown J.A. conclude that the trial judges interpretation of the
    Treaties is reviewable on a correctness standard. Lauwers J.A. concurs.
    Hourigan J.A., in contrast, concludes that treaty interpretation is reviewable
    on a standard of palpable and overriding error, absent extricable errors of
    law, which are reviewed on a correctness standard. Pardu J.A. concurs with
    Hourigan J.A.

[86]

Second,
    on the issue of the trial judges interpretation of the Treaties, Lauwers and
    Pardu JJ.A. hold that the trial judge did not err in her interpretation of the
    Treaties augmentation clause. Hourigan J.A. concurs. Conversely, Strathy
    C.J.O. and Brown J.A. hold that the trial judge committed errors of law in her
    interpretation of the Treaties, leading to an unreasonable interpretation.

[87]

Third,
    on the issue of the honour of the Crown, we unanimously agree that the doctrine
    is engaged in this case. Lauwers and Pardu JJ.A., with whom Hourigan J.A.
    concurs, conclude that the honour of the Crown obliges the Crown to increase
    the annuities as part of its duty to diligently implement the Treaties. Strathy
    C.J.O. and Brown J.A. conclude that the honour of the Crown requires, at a
    minimum, that the Crown turn its mind from time to time to consider increasing
    the amount of the annuities.

[88]

Fourth,
    on the issue of the Crowns discretion to augment the annuities, Lauwers and
    Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the Crowns
    discretion to augment the annuities is justiciable and not unfettered. Strathy
    C.J.O. and Brown J.A. agree that the Crowns discretion is justiciable and not
    unfettered.

[89]

Fifth,
    on the issue of fiduciary duties, Hourigan J.A., writing for a unanimous court,
    holds that the trial judge erred in finding that the Crown is under a fiduciary
    duty regarding the implementation of the augmentation clause in the Robinson
    Treaties. We therefore agree that this finding should be set aside.

[90]

Sixth,
    on the issue of Crown immunity, Hourigan J.A., writing for a unanimous court,
    concludes that it is not necessary to consider whether the Crown is immune from
    breaches of fiduciary duty prior to 1963 given the courts conclusion that the
    Crown does not owe a fiduciary duty regarding the implementation of the
    augmentation clause.

[91]

Seventh,
    on the issue of limitations, Hourigan J.A., writing for a unanimous court, holds
    that provincial limitations legislation does not preclude the breach of Treaty
    claims.

[92]

Eighth,
    on the issue of indexation, Lauwers and Pardu JJ.A., writing for a unanimous
    court, conclude that the trial judge did not err in rejecting the argument that
    the annuities paid pursuant to the Robinson Treaties should be indexed to
    mitigate the impact of inflation.

[93]

Ninth,
    on the issue of costs, Lauwers and Pardu JJ.A., writing for a unanimous court, conclude
    that Ontarios costs appeal from the Stage One proceedings should be allowed in
    part. We grant leave to appeal from the award of $9,412,447.50 in favour of the
    Huron Plaintiffs; we uphold the disbursements allowed by the trial judge, but
    set aside the fees allowed and remit the matter of the Huron Plaintiffs costs to
    the trial judge for reconsideration in accordance with the reasons of Lauwers
    and Pardu JJ.A. We deny leave to appeal from the costs award in favour of the
    Superior Plaintiffs in the sum of $5,148,894.45.

[94]

Finally,
    on the issue of remedies in the Stage One proceedings, Lauwers and Pardu JJ.A.,
    with whom Hourigan J.A. concurs, conclude that the trial judge erred in
    directing, as part of the judgments for the Stage One proceedings, the payment
    of annuities corresponding to a fair share of the value of the resources in
    the territory. Further, the trial judge also erred in directing in the
    judgments that tax revenues and the costs of infrastructure and institutions should
    be excluded from the calculation of net Crown resource-based revenue. Lauwers,
    Hourigan and Pardu JJ.A. therefore direct that the Stage One judgments should
    be amended as set out in Appendix A to these reasons by:

·

deleting with the amount of annuity payable in any period to
    correspond to a fair share of such net revenues for that period in para. 1(a);

·

deleting and the fiduciary duty which the Crown owes to the
    First Nation Treaty parties in para. 1(c);

·

deleting so as to achieve the Treaty purpose of reflecting in
    the annuities a fair share of the value of the resources, including the land
    and water in the territory in para. 1(d);

·

deleting but not including personal, corporate or property tax
    revenues in para. 3(b)(i);

·

deleting but do not include the costs of infrastructure and
    institutions that are built with Crown tax revenues in para. 3(b)(ii);

·

substituting that are fairly and reasonably equal to a fair share
    of with to be disbursed pursuant to the augmentation promise from in para.
    3(c); and

·

with respect to the Huron Plaintiffs only, setting aside para. 5
    of the partial judgment in the Huron action and remitting the matter of costs to
    the trial judge for determination in accordance with these reasons.

[95]

Strathy
    C.J.O. and Brown J.A. would vary the judgments on different terms, as set out
    in their reasons.

[96]

The
    Stage One appeal is therefore granted in part. The Stage One judgments are
    amended as set out in Appendix A; leave to appeal the costs award in favour of
    the Superior Plaintiffs is denied; and leave to appeal the costs award in
    favour of the Huron Plaintiffs is granted, the disbursements allowed by the
    trial judge are upheld, and the fees allowed are set aside and remitted to the
    trial judge for reconsideration. The Stage Two appeal is dismissed in its
    entirety.

[97]

If
    the parties cannot agree on costs for the appeals, they may provide the court
    with written submissions no more than 10 pages in length, along with their
    bills of costs. The Huron Plaintiffs, the Superior Plaintiffs and Canada are to
    provide their submissions within 15 days of the release of these reasons.
    Ontario is to provide its submissions within 30 days of the release of the reasons.

Lauwers and Pardu JJ.A.:

A.

Introduction

[98]

The
    primary issue raised in Ontarios appeal from the Stage One judgments turns on
    the interpretation of a provision in the Robinson Treaties known as the
    augmentation clause. Briefly stated, the trial judge found that the
    augmentation clause obliges the Government of this Province to increase the
    annuity to the First Nations from time to time when it can do so without
    incurring loss.

[99]

Ontario
    asserts that the trial judge made errors in the interpretation of the Treaties
    that we would group into four issues:


1.

the interpretation of the augmentation clause;

2.

the finding that the doctrine of the honour of the Crown obliges the
      Crown to increase the annuities as part of its duty to diligently implement the
      Treaties;

3.

the finding that the Treaties do not contain an implied term to index
      the annuities; and

4.

the approach to remedies.


[100]

We would largely
    reject Ontarios submissions for reasons that can be summarized in seven
    statements:


1.

the trial
judge correctly instructed herself on the governing
      principles of treaty interpretation set out in
Marshall
and other
      cases;
[54]

2.

the trial judges interpretation of the augmentation clause is grammatically
      and contextually correct;

3.

the trial judge did not make any palpable and overriding errors of fact,
      errors in principle, or extricable errors of law in her consideration of the
      evidence, contrary to Ontarios argument;

4.

the trial judge did not err in her analysis of the form and content of
      the Crowns discretion, or the First Nations understanding of the scope of
      that discretion, contrary to Ontarios argument;

5.

the trial judge correctly found that the honour of the Crown obliged the
      Crown to increase the annuities as part of its duty to diligently implement the
      Treaties;

6.

the trial judge correctly rejected Ontarios proposal to supplant the
      augmentation clause by implying a judicially created indexing term into the
      Treaties; and

7.

despite our agreement with the trial judge thus far, her interpretation
      of the Treaties fell short on the fair share issue.


[101]

Before turning to our
    analysis, we note that these appeals raise a number of other issues that are
    addressed in the reasons of our colleagues. We concur with the reasons of
    Hourigan J.A. on the issues of fiduciary duty, Crown immunity and limitation
    defences. On the issue of the standard of review for treaty interpretation,
    Lauwers J.A. concurs with Strathy C.J.O. and Brown J.A., and Pardu J.A. concurs
    with Hourigan J.A.

[102]

We now turn to the
    four interpretation issues and also address the issue of costs, then conclude
    with our disposition.

B.

Issue One: Did the Trial Judge Err in Her Interpretation of the Augmentation
    Clause in the Treaties?

[103]

We begin by setting
    out the Treaty text. We next address the governing principles and the trial
    judges interpretation of the text, and then apply the governing principles to
    Ontarios arguments.

(1)

The Treaty Text to Be Interpreted

[104]

For convenience, we
    will use the text of the Robinson-Huron Treaty, which is almost identical to
    the text in the Robinson-Superior Treaty. The analysis applies equally.
    Particularly pertinent text is underlined and we have inserted several
    guideposts. The other text provides context. The Robinson-Huron Treaty
    provides:

[F]or, and in consideration of the sum of two thousand pounds
    of good and lawful money of Upper Canada, to them in hand paid, and
[the collective annuity]

for
    the further perpetual annuity of six hundred pounds of like money, the same to
    be paid and delivered to the said Chiefs and their tribes at a convenient
    season of each year
, of which due notice will be given, at such places
    as may be appointed for that purpose, they the said Chiefs and Principal men,
    on behalf of their respective Tribes or Bands, do hereby fully, freely, and
    voluntarily surrender, cede, grant, and convey unto Her Majesty.



And the said William Benjamin Robinson of the first part, on
    behalf of
Her Majesty and the Government of this
    Province, hereby promises and agrees to make, or cause to be made, the payments
    as before mentioned; and further to allow the said Chiefs and their Tribes the
    full and free privilege to hunt over the Territory now ceded by them, and to
    fish in the waters thereof, as they have heretofore been in the habit of doing
;
    saving and excepting such portions of the said Territory as may from time to
    time be sold or leased to individuals or companies of individuals, and occupied
    by them with the consent of the Provincial Government.



[the augmentation clause]

The said William Benjamin Robinson, on behalf of Her
    Majesty, Who desires to deal liberally and justly with all Her subjects, further
    promises and agrees that should the territory hereby ceded by the parties of
    the second part at any future period produce such an amount which will enable
    the Government of this Province, without incurring loss, to increase the
    annuity hereby secured to them, then and in that case the same shall be
    augmented from time to time,

[the first
    proviso]
provided that the amount paid to each
    individual shall not exceed the sum of one pound Provincial currency in any one
    year,

[the graciousness clause]

or such further sum as Her Majesty may be graciously pleased to
    order; and

[the second proviso]

provided further that the number of Indians entitled to the
    benefit of this treaty shall amount to two-thirds of their present number
,
    which is fourteen hundred and twenty-two, to entitle them to claim the full
    benefit thereof;
[the diminution clause]

and should they not at any future period amount to two-thirds of
    fourteen hundred and twenty-two, then the said annuity shall be diminished in
    proportion to their actual numbers.

Within the first proviso to the augmentation clause is
    the clause, or such further sum as Her Majesty may be graciously pleased to
    order. The parties called this the 
ex gratia
clause or the
    graciousness clause.
[55]
We will use the latter term.

(2)

The Governing Principles of Treaty Interpretation

[105]

The trial judge
    correctly instructed herself on the principles governing the interpretation of
    historical treaties.
[56]
No one argues to the contrary.

[106]

Principles related to
    common intention, text, context and purpose inform the interpretation of
    historical treaties. These principles are well settled, although the facts of
    any particular case will make some more salient than others.
[57]
The principles work to instantiate the constitutional principle of the honour
    of the Crown in the service of the reconciliation of Aboriginal and
    non-Aboriginal Canadians.

(a)

Common Intention

[107]

In interpreting a
    treaty, the court must choose from among the various possible interpretations
    of the
common
intention [at the time the treaty
    was made] the one that best reconciles the interests of the First Nations and
    the Crown.
[58]
The common intention is that of both treaty partners, not one alone.
[59]

(b)

Text, Context and Purpose

[108]

A court must attend to
    both the written text of a treaty and the evidence about the context in which
    it was negotiated, consistent with the principle that extrinsic evidence is
    always available to interpret historical treaties. Mackinnon A.C.J.O. stated in
Taylor and Williams
, if there is evidence by conduct or otherwise as
    to how the parties understood the terms of the treaty, then such understanding
    and practice is of assistance in giving content to the term or terms.
[60]
He accepted the common submission of counsel before him that recourse could be
    had to the surrounding circumstances and judicial notice could be taken of the
    facts of history.
[61]
He added: In my opinion, that notice extends to how, historically, the parties
    acted under the treaty after its execution.
[62]
The court need not find an ambiguity in a treaty before admitting extrinsic
    evidence.
[63]


[109]

Binnie J. explained in
Marshall
:

The special rules are dictated by the special difficulties of
    ascertaining what in fact was agreed to [in historical treaties]. The Indian
    parties did not, for all practical purposes, have the opportunity to create
    their own written record of the negotiations. Certain assumptions are therefore
    made about the Crowns approach to treaty making (honourable) which the Court
    acts upon in its approach to treaty interpretation (flexible) as to the
    existence of a treaty, the completeness of any written record (the use, e.g.,
    of context and implied terms to make honourable sense of the treaty
    arrangement, and the interpretation of treaty terms once found to exist.
[64]

McLachlin J. added cultural and linguistic differences
    to this non-exhaustive list of contextual considerations.
[65]

[110]

Unlike modern
    treaties, historical treaties are not a product of lengthy negotiations
    between well-resourced and sophisticated parties.
[66]
The historical record of the negotiations shows how quickly the Treaties at
    issue in these appeals were negotiated and how much they left undefined. The trial
    judge rightly characterized the Treaties as lean on details, particularly
    respecting the future operation of the augmentation clause.
[67]

[111]

The court must take a
    purposive approach to the interpretation of a treaty obligation, informed by
    the honour of the Crown,
[68]
recognizing that treaty promises are solemn promises and that treaties are
    sacred.
[69]


(c)

Reconciliation and the Honour of the Crown

[112]

The reconciliation of
    Aboriginal and non-Aboriginal Canadians is the grand purpose of s. 35 of the
Constitution
    Act, 1982
,
[70]
and the first principle of Aboriginal law.
[71]
This fundamental objective
[72]
flows from the tension between the Crowns assertion of sovereignty and the
    pre-existing sovereignty, rights and occupation of Aboriginal peoples
[73]
and the need to reconcile respective claims, interests and ambitions.
[74]


[113]

Reconciliation is also
    the objective

of the legal approach to
    treaty rights and the overarching purpose of treaty making and, perforce,
    treaty promises.
[75]
Reconciliation underpins the doctrine of the honour of the Crown,
[76]
which operates as a constitutional principle.
[77]
Hence: The controlling question in all situations is what is required to
    maintain the honour of the Crown and to effect reconciliation between the Crown
    and the Aboriginal peoples with respect to the interests at stake.
[78]

[114]

We will consider the
    honour of the Crown more closely in addressing the second issue.

(3)

The Trial Judges Interpretation of the Augmentation Clause

[115]

As noted, in the task
    of treaty interpretation, in addition to the treaty text, the court must advert
    to the larger context in which the treaty was negotiated. T
he Indigenous perspective is to be considered and
    given due weight.
[79]
That perspective was fairly established on evidence that Ontario does not
    dispute.
The trial judge stated:

From the Anishinaabe perspective, the central goal of the
    treaty was to renew their relationship with the Crown, which was grounded in
    the Covenant Chain alliance and visually represented on wampum belts with
    images of two figures holding hands as part of two links in a chain.
[80]

[116]

She added:

These principles of respect, responsibility, reciprocity, and
    renewal were fundamental to the Anishinaabes understanding of relationships.
    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.
[81]


[117]

The
trial
judge considered whether the
    augmentation clause distinguishes between a collective annuity payable to each
    First Nation as a whole, on the one hand, and the annuity paid to individual
    band members, on the other hand. She found that the augmentation clause does
    make a distinction between 
the collective annuity (either £500 or £600)
    paid to the Chiefs and their Tribes and a distributive amount that is paid to
    individuals from the collective amount and is limited to £1 (equivalent to $4)
    or such further sum as Her Majesty may be graciously pleased to order.
[82]


[118]

The trial judge set
    out her conclusion at the beginning of her reasons
:

I find that the Crown has a mandatory and reviewable obligation
    to increase the Treaties annuities when the economic circumstances warrant.
    The economic circumstances will trigger an increase to the annuities if the net
    Crown resource-based revenues permit the Crown to increase the annuities
    without incurring a loss.
[83]


[119]

In working her way to
    that conclusion, the trial judge posited three possible interpretations of the
    augmentation clause. The first, which Ontario still advances, is that: the
    Crowns 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.
[84]
The trial judge rejected this interpretation.
[85]

[120]

The second
    interpretation was 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.
[86]
The trial judge noted that this interpretation had a certain logic, although
    she rejected it.
[87]


[121]

Instead, the trial
    judge accepted the third interpretation: that the Treaties were a collective
    promise to share the revenues from the territory with the collective; in other
    words, to increase the lump sum annuity so long as the economic condition was
    met.
[88]
In her view, the third interpretation includes the second interpretation.
[89]
She added: The reference to £1 (equivalent of $4) in the augmentation clause
    is a limit only on the amount that may be distributed to individuals.
[90]


[122]

The trial judge held:
    Applying the approved treaty interpretation principles, including the honour
    of the Crown, and examining the full context in which the Treaties were made,
    only the third interpretation comes close to reflecting the parties common
    intention.
[91]
She added:

This interpretation holds the parties in a relationship,
    looking toward the future together. I find that the interpretation that imposes
    a $4 per person cap on the annuities does not reflect either the common
    intention nor reconcile the parties interests; it suggests that the Treaties
    were a one-time transaction. As the historical and cultural context
    demonstrates, this was not the case; the parties were and continue to be in an
    ongoing relationship.
[92]

(4)

The Governing Principles Applied

[123]

We stated at the outset that, in our view, having properly
    instructed herself on the principles, t
he trial judges interpretation
    of the augmentation clause is grammatically and contextually correct. In this
    section, we address and reject two of Ontarios arguments. We address Ontarios
    textual argument in the section of these reasons on Crown discretion.
[93]


[124]

Ontario takes the position that the $4 per person amount specified
    in the Treaties fixes the total amount of the annuity payable by the Crown, which
    is calculated by multiplying the number of eligible individual recipients by
    $4. While the Crown is obligated to pay that amount, it has unfettered
    discretion as to when and whether to increase the per person annuity beyond
    this hard cap and therefore to increase the total annuity paid. The Crown has
    not done so since 1875.

[125]

Ontario makes two basic arguments. First, the
trial
judge erred in her findings on the common intentions of the Treaty
    parties because she failed to take into account certain evidence of Crown
    intention. Second, she erred in finding that the Crown discretion in the
    augmentation clause to increase the annuity was not unfettered. These arguments
    are linked because Ontario asserts that the Crown would never have agreed to
    fetter its discretion. The idea was unthinkable.

(a)

The Trial Judge Did Not Err in Her Findings on the
    Common Intentions of the Treaty Parties

[126]

Ontario stated in its factum:

There were few disputes at trial regarding primary facts
    disclosed by the historical record: what was done, said and written, and who
    was involved in events. Ontario does not challenge the facts set out by the
    trial judge in the Reasons, although the judges summary of the facts is
    materially incomplete; important evidence indicating how the Treaty parties
    actually understood the annuity promise was ignored. Partly on that basis
    Ontario challenges certain key inferences drawn by the trial judge.

However, it became clear in oral
    argument that Ontario does challenge the
trial
judges
    material findings root and branch.

[127]

Ontario argues that the
trial
judge failed
    to take certain crucial evidence into account. The
trial
judge acknowledged that her task was to discern the parties common
    intention, but Ontario asserts that she failed to accord due weight to the
    evidence of Crown intention before the Treaty negotiations, during the
    negotiations, in their immediate aftermath, and later in the post-Treaty
    period. The
trial
judge also unreasonably discounted evidence
    of Anishinaabe intention that was contrary to her interpretation of the Treaties.
    Ontario labels these as errors in law or palpable and overriding errors of fact
    that oblige this court to set aside the judgment and either render judgment in
    the terms that Ontario seeks or order a new Stage One trial.

[128]

The standard of appellate review related to a
palpable and
    overriding error is very deferential:

Palpable means an error that is obvious. Overriding means
    an error that goes to the very core of the outcome of the case. When arguing
    palpable and overriding error, it is not enough to pull at leaves and branches
    and leave the tree standing. The entire tree must fall.
[94]

[129]

Ontario argues that
    Crown actors and other non-Indigenous individuals understood the Crowns
    obligation to augment the Treaties to be limited to or capped at a maximum of
    $4 per person, the amount Ontario has been paying since 1875. The trial judge
    misapprehended the common intentions of the Treaty parties by unreasonably
    discounting or ignoring certain historical evidence.

[130]

Ontario identifies
    evidence that contradicts the trial judges interpretation. In analyzing this
    evidence, we are mindful of the surfeit of evidence reviewed by the trial
    judge. To achieve the result Ontario seeks, the countervailing evidence must go
    to the very core of the trial judges reasoning and reveal it to be mistaken.
    With respect, the countervailing evidence falls far short of demonstrating a
    palpable and overriding error of fact, an error in principle, or an error of
    law.

[131]

Several of the
    documents that Ontario relies upon were created close to the time of Treaty
    formation, some by individuals that were present  or nearby  when the Treaties
    were negotiated. The rest of the documents, some of which were not expressly
    addressed by the trial judge, were penned years, even decades, after the
    Treaties were signed. They are of limited value in discerning the Crowns intentions
    when the Treaties were signed. The trial judge did not err in her treatment of
    this evidence.

(i)

The Proximate Evidence

[132]

Each document in the
    proximate evidence requires careful evaluation to discern what it reveals about
    Crown intention when the Treaties were signed. Ontario refers to the Orders in Council
    (OICs) instructing Robinson, his Treaty Report, a letter from a Hudson Bay
    Company factor, correspondence between Robinson and Colonel Robert Bruce, and a
    newspaper article.

(i)

The Orders-in-Council Instructing Robinson

[133]

Robinson received instructions in two OICs. The first, dated January
    11, 1850, appointed him as Treaty Commissioner and authorized him to negotiate
    treaties with the Anishinaabe of Lake Superior and Lake Huron. The second,
    dated April 16, 1850, described Robinsons mandate in more detail. Ontario argues
    that the
trial
judge failed to advert to the
    implications of the second OIC in determining Crown intention.

[134]

In describing the instructions to Robinson in the second OIC, the
trial
judge noted that the Executive Council intentionally sent
    Robinson to the Treaty Council without the financial authority to offer to
    match annuity provisions from previous treaties.
[95]
She observed that this might
    well have reflected the financial crisis then facing the Province of Canada.
[96]

[135]

The
trial
judge did not mention the second
    OIC explicitly when she discussed Crown intention, but she implicitly referred
    to it in her comment that 
Robinsons
    instructions were flexible enough that his augmentation clause proposal could
    fit within their scope.
[97]
She added that, in her view, the augmentation clauses novelty would have
    compelled him to discuss the idea and seek approval before making it an
    official offer.
On this basis, the
trial
judge found it reasonable to conclude that when Robinson met
    Governor General Lord Elgin in Sault Ste. Marie on August 30 and August 31,
    1850, he received approval to propose the augmentation clause.
[98]

[136]

Ontario argues that under any interpretation, the augmentation
    clause went beyond the instructions in the second OIC. In the context of those
    instructions, Robinson was unlikely to have been seeking authorization to
    promise uncapped annuities, or annuities that could ever rise above $10 per
    person, as provided in earlier treaties.

[137]

The augmentation clause did depart from Robinsons instructions in
    the second OIC. But the historical circumstances when the Treaties were signed
     including the Crowns financial situation and the low expectations for the
    future productivity of the Treaty territories  do not make Ontarios
    interpretation of a very low cap, from the First Nations perspective, more
    likely to have found Lord Elgins approval. Moreover, the augmentation clause
    took the approach recommended in the report of the Vidal-Anderson Commission by
    including a provision for an increase of payment upon further discovery and
    development of any new sources of wealth.
[99]
The augmentation clause would not have been a bolt out of the blue. The
trial
judge did not err in her consideration of the second OIC.

(ii)

Robinsons Treaty Report

[138]

Ontario argues that
    the trial judge failed to give any weight to Robinsons Treaty Report, dated
    September 24, 1850. To the contrary, it is clear that the trial judge took the Treaty
    Report into account. She quoted from the following section:

I trust his Excellency will approve of my having concluded the
    treaty on the basis of a small annuity and the immediate and final settlement
    of the matter,
rather than paying the Indians the full
    amount of all moneys on hand, and a promise of accounting to them for future
    sales. The latter course would have entailed much trouble on the Government
,
    besides giving an opportunity to evil disposed persons to make the Indians
    suspicious of any accounts that might be furnished.

Believing that His Excellency and the
    Government were desirous of leaving the Indians no just cause of complaint on
    their surrendering the extensive territory embraced in the treaty; and knowing
    there were individuals who most assiduously endeavored to create
    dissatisfaction among them, I inserted a clause securing to them certain
    prospective advantages should the lands in question prove sufficiently
    productive at any future period to enable the Government without loss to
    increase the annuity.
This was so reasonable and just that I had no
    difficulty in making them comprehend it, and it in a great measure silenced the
    clamor raised by their evil advisers.
[100]

[139]

Robinson did not refer
    to a $4 cap. His silence cannot be taken to mean, as Ontario argues, that the
    operation of such a cap is obvious. Focussing on the second section of the text
    set out above, the trial judge found that augmentation capped at $4 could not
    have achieved Robinsons purpose in securing the Treaties:

When Robinson reported that the augmentation clause was so
    reasonable and just, it is my view that he could not have been referring to
    an annuity capped at $4. Chief Shingwaukonse and the other Anishinaabe Chiefs
    would not have found a $4 cap to their annuities either reasonable or just; it
    was far less than half of what other bands received as fixed sum annuities and,
    additionally, it did not respond to their demand for a share of the future wealth
    of the territory.
[101]


As noted earlier, this approach was consistent with the
    recommendations of the Vidal-Anderson Commission. This factual finding was open
    to the trial judge.

[140]

Ontario argues that
    this part of Robinsons Treaty Report suggests that he could not have intended
    an uncapped annuity because the trial judges interpretation requires
    precisely the endless accounting and trouble that Robinson reports he
    avoided.

[141]

We would not give
    effect to this argument for three reasons. First, some rough form of accounting
    was required in order to determine whether the augmentation clause was
    triggered, under any interpretation. This is undeniable.

[142]

Second, the historical
    context tells a more nuanced tale. The augmentation clause is not a promise of
    accounting  for future sales.
Robinsons trouble was
    likely related to the onerous task of tracking each sale of land on the
    territory and the interest gained on the proceeds of those sales, as the
    practice had been in other areas of the Province.
[102]
By contrast, monitoring the
    overall revenue and expenses linked to the territory would then have been a
    relatively simple task, whether or not the annuity was capped at $4 per person.

[143]

Third,
    Robinson does not appear to have expected that significant revenues would be
    generated from the territory. He stated,
these lands now ceded are
    notoriously barren and sterile, and will in all probability never be settled
    except in a few localities by mining companies. Given this, it is unlikely
    that he would have viewed the ongoing monitoring of total revenues and expenses
    from the Treaty territories as a particularly complex or troublesome task. The
    reference to trouble is not, therefore, inconsistent with the trial judges
    interpretation.

(iii)

Buchanans Letter to Simpson

[144]

Ontario
    points to two accounts from individuals who were in the vicinity when the Treaties
    were signed, neither of which the trial judge referred to in her reasons. On
    September 11, 1850, mere days after the Treaties were signed,
A.W. Buchanan,
    the Hudson Bay Company Post Factor at Sault Ste. Marie, wrote to George
    Simpson, the Governor of the Hudson Bay Company:

The terms of the treaty are that the Indians
    are to receive £4,000 now to be divided amongst the whole of them, and £1,000
    are to be paid them annually for ever, liable to be increased until the sum
    amounts to £1 for each Indian should sales of land be made to afford that sum.

[145]

Jean-Philippe Chartrand, Ontarios expert witness, testified that
    while Buchanan was nearby and was responsible for provisioning the Anishinaabe
    encamped at the Treaty Council, he was not a witness to the negotiation or
    execution of either Treaty. Mr. Chartrand agreed that Buchanan seems to be
    recording not what happened but  Robinsons first offer, which was not the
    one the First Nations accepted.
[103]
The
trial
judge did not err in not referring to this
    document or in arriving at an interpretation inconsistent with it.

(iv)

Correspondence Between Bruce and Robinson

[146]

The
    second account to which Ontario refers is from Colonel Robert Bruce, dated
    October 16, 1851. Bruce forwarded to Robinson
a petition from
    the Lake Huron Chiefs asking the government to consider distributing annuities
    based on traditional land areas rather than on population. Bruce did not appear
    to support the petitioners. He commented: The following extract from the
    Treaty seems to show conclusively that the distribution was to be per
capita
& not as suggested by the Petitioners (emphasis in the
    original). Bruce stated that his impression was gathered from your report, the
    treaty itself and the numerical lists transmitted as a guide for the
    distribution of annuities. According to the editors of the British Colonist
    Newspaper, Col. Bruce did not attend the treaty.

[147]

Robinson responded to Bruce:

I can only say that the Treaty made by me with
    the Indians last year was based on the same conditions as all preceding ones I
    believe. These conditions even fully explained in Council & are also
    clearly expressed in the Treaty.



Nothing was said by the Chiefs [illegible] of
    the nature mentioned in the extract you sent me & all seemed satisfied both
    at the signing of the Treaty & payment of the money with the terms on which
    I concluded the Surrender by them to Her Majesty.

[148]

Robinsons response does not support Ontarios interpretation. His
    answer addressed the manner of distribution of annuities among the Chiefs,
    which is what he was asked about. Robinson confirmed that the distribution was
    to be based on the population of each Chiefs community, not the area of land
    that each Chief had surrendered on behalf of his community.
[104]
The model of distribution
    that Robinson described is not inconsistent with the
trial
judges interpretation. More importantly, neither Bruces inquiry
    nor Robinsons response addressed the operation of the alleged cap in the
    augmentation clause.

(v)

The Newspaper Article

[149]

Ontario
    points to an
article published in the British Colonist
    Newspaper on October 1, 1850, containing an account of the Treaty Council,
    provided by an individual who was present. An extract from an American
    newspaper, with details of the Robinson Treaties, was printed in the same
    edition. Below the eyewitness account, the editor comments:

The terms, as mentioned in the [American]
    extract first alluded to are, we believe, nearly correct, except that any
    future increase to the annuity, which the sale of the ceded territory may
    enable the Government to make, is limited to four dollars a head.

[150]

The provenance of this information is unclear. The fact that it
    follows an eyewitness account does not mean that this comment came from the
    eyewitness. In the absence of evidence about where the editor got this
    impression, it sheds no light on the Crowns intention in entering the Treaties.

(ii)

The Post-Treaty Evidence

[151]

The post-Treaty
    evidence consists of records of requests that the annuities be increased to $4
    per person, consideration of those requests by officials, petitions for the
    payment of arrears, requests for further increases, the 1893 Affidavit of John
    Mashekyash, and records of the arbitration between Canada, Ontario and Quebec.

[152]

According to Ontario, the documents it relies on show that Crown
    actors and other non-Indigenous individuals unequivocally understood the
    Crowns obligation as being limited to $4 per person, subject to the
    possibility of a discretionary increase. Ontario argues that the
trial
judge failed to take these documents into account and that her
    interpretation is inconsistent with this evidence of the Crowns intentions and
    understanding. Ontario argues that this is an error in principle that requires
    reversal.

(i)

The Governing Principles on the Use of Post-Treaty Evidence in Treaty
    Interpretation

[153]

Temporal proximity is
    not required for post-treaty evidence to be admissible, but evidence from
    shortly after treaty formation is more likely to reveal the parties interests
    and intentions. As
Lamer J. noted, the subsequent conduct
    which is most indicative of the parties intent is undoubtedly that which most
    closely followed the conclusion of the document.
[105]

[154]

Post-treaty evidence
    and evidence of the parties subsequent conduct can play a role in treaty
    interpretation but must
be treated with extreme caution.
[106]
I
n
West Moberly
,

Smith J.A. (dissenting) referred to post-treaty events and
    conduct but noted that they mostly had limited relevance to the issue of the
    common intention of the parties to the Treaty in 1899 unless they involve the
    Treaty parties or conduct that is probative to the intention of a Treaty
    party.
[107]


[155]

In
Lac La Ronge
,
    Vancise J.A. adopted the trial judges statement in that case:

It is very useful to read what a signatory said about a treaty
    provision at or about the time when the document was executed. It is equally
    useful to know whether or not subsequent conduct by other people accorded with
    what was said. However, it is of no value to learn that some person, fifty
    years later, acted differently based on his or her own personal reading of the
    provision in the treaty. That conduct has no link to the contemporaneous
    historical circumstances and therefore should not be admitted.
[108]

[156]

The intervener Biigtigong Nishnaabeg First Nation argues that the
    risks of relying on subsequent conduct in interpreting contracts, as identified
    by Strathy C.J.O. in
Shewchuk
,
[109]

are also present in the
    treaty context. Tools developed by the court for interpreting contracts are to
    be applied to treaties only cautiously, particularly historical treaties. We do
    not find it necessary to borrow from the contract context in this instance.

(ii)

The Principles Applied

[157]

The
trial
judge recognized that post-treaty
    evidence can assist in depicting how the parties understood the terms of the
    Treaties.
[110]
However, she noted that [t]he weight to be attributed to the post-treaty
    record will vary in each case and will depend on the nature and context of the
    accounts and conduct. She considered the frailties of the post-Treaty evidence
    and concluded:

[T]he
post-Treaty record, both written
    and conduct, is vague, inconsistent, and conflicting. It is of limited
    assistance to the exercise of searching for the parties common intention. It
    shows that different people at different times and places held different
    understandings of the Treaties promise.
[111]

[158]

The
trial
judge did not err in her
    assessment of the post-Treaty evidence. She was not obliged to refer to every
    document on the record, which would have been virtually impossible given the
    volume of evidence before her.
[112]
More importantly, the evidence that Ontario now attempts to rely
    upon is incapable of establishing that the
trial
judge
    erred in determining Crown intention.

[159]

The Robinson Treaties
    were signed in 1850. Of the remaining post-Treaty documents that Ontario relies
    upon, only two were written prior to 1873. The arbitration documents, on which
    Ontario places particular emphasis, date from the 1890s. This lack of temporal
    proximity renders most of the post-Treaty evidence of doubtful probative value,
    an assessment that is borne out upon consideration of other factors.

[160]

Ontario has not demonstrated any connection between the post-Treaty
    evidence it relies upon and the Crowns intentions or interests on the date the
    Robinson Treaties were signed. The documents do not recount Treaty negotiations
    or conversations with Robinson before or after the Treaty Council. They do not
    describe the problems facing the Crown in 1850 or the policies the Crown was
    pursuing in response.

[161]

Instead, much of
    Ontarios evidence consists of personal interpretations of the augmentation
    clause made by individuals who had no connection with the formation of the Treaties.

[162]

In
    a letter written in 1858, Richard Carney, an Indian Agent, described
visiting the Garden River settlement and talking with the Chiefs
    there. Carney reported explaining to the Chiefs that the annuity was not to
    exceed Four Dollars. He stated that he gave this explanation after he asked
    for a sight of the Treaty. This was his interpretation of the Treaty, nothing
    more.

[163]

Post-Treaty
    evidence must also be read carefully in its particular context, which includes
    the wider historical context and the specific context in which a document was
    created.

[164]

The
    1858
Pennefather Report cited the Treaty text and expressed
    decided regret, that a Treaty shackled by such Stipulations, whereby a vast
    extent of Country has been wrung from the Indians for a comparatively nominal
    sum, should have received the sanction of the Government.
[113]


[165]

Ontario argues that no such regret would have been necessary if the
    augmentation clause was to operate as the
trial
judge
    found. But this is an anachronistic reading; the reference to a comparatively
    nominal sum must be read in its historical context. The authors appeared to
    believe, eight years after the Treaties were signed, that no increase in the
    annuity was yet warranted.
[114]
There was, at that point, no reason to believe that revenues would ever warrant
    a significant increase in the annuity. Viewed in that historical context, the
    Treaties were not seen as a good deal for the Anishinaabe, even with the
    prospect of future, uncapped augmentation.

[166]

Context
    is also relevant to post-Treaty evidence relating to Anishinaabe requests for
    increases in the annuities. T
he
trial
judge
    correctly found that the petitions must be read in their historical and
    cultural context:

Dr. Bohaker testified, and Mr. Chartrand agreed, that these
    petitions could be labelled pity speeches, a term historian[s] use to
    describe the use of metaphor to ask relations to meet their obligations within
    the ongoing relationship. One would not expect a pity speech to set out the
    full scope of the obligations arising from the treaty relationship, but rather
    to make modest requests that would remind the treaty partner of their promise
    to care for the other.
[115]

[167]

The trial judge cited
    Mr. Chartrands evidence that the Anishinaabe were modest and diplomatic
    when making requests under the Treaties.
[116]
That the Anishinaabe, in 1873, asked only for $4, and that non-Indigenous
    actors responded to those requests, cannot demonstrate that the Anishinaabe
    were not ever entitled to more.

[168]

Simon Dawson, a Member of Parliament, wrote to the
    Governor-Generals Secretary in 1873 that the lands ceded have become
    sufficiently productive to warrant the increased payment of at least $4; if
    not, of such further sum (over and above the $4) as Her Majesty may be
    graciously pleased to order, as provided for in the above cited clause of the
    treaty.

[169]

Letters from E.B. Borron, a Member of Parliament, in 1874 and 1875,
    urged Ministers in the Department of the Interior to pay the full amount of
    annuity stipulated for in the Treaties, at $4. It is unclear how he reached
    this interpretation. Justice Minister Edward Blake responded with his opinion
    on July 7, 1875, based on the papers laid before the undersigned, as well as
    oral information of the Minister of the Interior (to whom Borron had written).
[117]
D. Laird, Minister of the Interior, then advised, on July 12,
    1875, that he concurs in the views expressed in the annexed report of the
    Honorable the Minister of Justice and referred to Blakes opinion that the
    Anishinaabe were entitled, under the Treaty of 1850, to the maximum amount of
    annuity thereby stipulated, namely $4 per head. The resulting federal OIC, which
    increased the annuities to the maximum amount of annuity thereby stipulated,
    namely, $4.00 per head, was expressly based on both Blakes opinion and
    Lairds report. These writers appear to take their interpretations either
    directly from the Treaty text, or from one another, not relying on information
    about the intentions or interests of the Crown when the Treaty was formed.

[170]

Eight years after his first letter, Dawson wrote again. In his
    letter to Col. C. Stuart, dated October 7, 1881, he referred to the full
    amount of the available annuity, and to the payment of arrears on the $4
    amount as providing the full benefit of the stipulation throughout the whole
    period. He did so based on his own interpretation of the text and other
    interpretations he had read. He began his letter with the words: By this
    Treaty  it was stipulated as follows, before quoting the augmentation clause.
    He then continued:

The language is clear and on reference to the
    official correspondence, it will be seen that it is nowhere denied, but on the
    contrary, admitted on all hands, that from the time the payment of four dollars
    per head could have been made from the revenue of the ceded territory, without
    loss to the Government, the Indians were clearly entitled to have their
    annuities augmented to that amount.

Dawson did not base his
    interpretation, as reflected in either his 1873 or 1881 letters, on any
    evidence, beyond the Treaty text, as to the interests or intentions of the
    Crown at the time of Treaty formation.

[171]

Next, on January 9, 1884, Charles Skene, an Indian Agent, recounted
    his discussion with Chief Solomon James and other Chiefs. He told them that $4
    was the utmost sum to be given as annuity, and their response was that it is
    not so. He then referred to the written copy of the Treaty sent to me by the
    Department. Again, it appears likely that his interpretation of the Treaties
    came from reading the text. This evidence is equivocal, in any event, since the
    First Nations representatives denied the cap.

[172]

Ontario argues that the interpretations expressed by these writers
    are relevant because, in order to find the Crown intention to have been
    contrary to these interpretations, one would have to accept (in the absence of
    evidence) that this interpretation was intended by the Crown at the time of
    ratification, but then almost immediately forgotten by the bureaucracy charged
    with implementing the Treaties.

[173]

On the contrary, there is no evidence to show, and no reason to
    believe, that in the 23 years between the promise being made and the
    Anishinaabe complaints that sparked discussion and action, knowledge relevant
    to the Crowns intentions and interests was communicated, discussed, or passed
    among bureaucrats.

[174]

Instead, the evidence suggests that the Treaties were set aside and
    largely forgotten for two decades. Only in 1873, when they were faced with
    complaints, did the responsible bureaucrats read the augmentation clause and reach
    their own understanding of the text. The resulting documents are therefore of
    very little probative value in determining what the Crowns intentions were in
    1850.

[175]

Ontario
    points to the 1893 affidavit of Elder John Mashekyash, of Batchewana First
    Nation, who was present at the Treaty negotiations. The trial judge assessed
    that evidence and concluded that it would be risky to give much weight to it
given the frailties of memory and
Mashekyashs presence only
    in the Huron negotiations.
[118]
She added that his was not evidence of

any widespread
    understanding of the Huron Chiefs at the time the Robinson Huron Treaty was
    signed. This assessment was well within the trial judges remit.

[176]

Finally, Ontario placed particular emphasis on documents relating to
    the financial dispute between Canada, Ontario and Quebec regarding
    responsibility for the Crowns annuity obligations. The decisions of the
    arbitrators in that dispute were reviewed by the Supreme Court of Canada and
    the Judicial Committee of the Privy Council.
[119]
The
trial
judge did not refer to this group of
    documents, and for good reason. They provide little, if any, assistance in
    understanding the Crowns intentions or interests at the time of Treaty
    formation. The documents exhibit the frailties of being neither proximate nor
    connected to Treaty formation. The context in which they were written calls for
    particular caution in relying on them.

[177]

Vancise J.A.
    cautioned, in
Lac La Ronge
, against reading subsequent conduct not
    directly related to the interpretation of the Treaty, including compromise
    decisions, as a demonstration of the intention of the parties at the time the
    treaty was negotiated and signed.
[120]
Records that were not aimed at interpreting the augmentation clause must be
    read with a sensitivity to the context of the documents and the objectives the
    writer sought to achieve.

[178]

The main issue in dispute in the arbitration was which of Canada,
    Ontario or Quebec bore responsibility for paying the Robinson Treaty annuities.
    The parties to the arbitration referred to $4 as the full or maximum amount
    of the annuity, and Justice Burbidge, one of the arbitrators, found that [a]ny
    increase beyond that would have been a matter of grace.
[121]
Neither party raised the
    possibility that the $4 stipulation did not cap the annuities. While there
    might have been careful scrutiny of the augmentation clause in the
    arbitration, that scrutiny was, on the part of the paying parties, aimed at
    advancing each partys case against the others and, on the part of the
    arbitrators, limited to considering the arguments of the parties. They were not
    focused on Anishinaabe entitlements.

[179]

There was a lively debate during the arbitration as to whether the
    $4 per person limit was based on the Anishinaabe population at the time the Treaties
    were signed or on the population at the time the annuity was paid. Mr. Clark,
    counsel for Ontario at the arbitration, argued that it is apparent on the face
    of the Treaty that the maximum liability of the Province under that covenant in
    any event is 1422 [population at the time of Treaty formation], multiplied by
    4, all of which would be paid to the Chiefs, who then divided it as they
    chose.
[122]

[180]

Mr.
    Clarks understanding, which differs from the one Ontario now claims to be
    self-evident, was earlier expressed by William Spragge in 1873. Spragges
    report, drafted in response to petitions from the Anishinaabe, referred to $4
    as the maximum amount per head named in the treaties.
Ontario argues
    that Spragge, having been a Crown official since 1847, was aware of the
    circumstances of the Treaty negotiations.
However, in a letter
    preceding his report, he gave his opinion that the annuities were only to be
    augmented based on
the First Nations population when the Treaties were
    signed.
[123]
His adoption of this interpretation, which no party to these appeals currently
    endorses, significantly undermines the value of his report as an aid in
    interpreting the Treaties. It also suggests that Spragge had no special
    knowledge of the Treaty negotiations.

[181]

It
    is also worth noting that, to the opposite effect, some Crown actors expressed,
    albeit cautiously, the view that more might be owed to the Anishinaabe. Dawson,
    in his 1881 letter, wrote that the sum of the arrears on
the
    $4 annuity, although considerable, is not all the Indians may fairly claim or
    are justly entitled to, before referring to the graciousness part of the
    augmentation clause. He then referred to other bands who receive a higher
    annuity and also carpenters tools, twine for nets, farming implements and
    cattle.

[182]

On June 17, 1893, E.L. Newcombe, a Deputy Minister, wrote to
    Lawrence Vankoughnet, Deputy Superintendent General of Indian Affairs, in
    reference to the augmentation clause. Newcombe stated, after quoting from the
    augmentation clause:

The portion of the above excerpt to which I
    wish to have particular attention called is that which describes the additional
    annuity, over and above one pound per caput which may be paid as such further
    sum as Her Majesty may be pleased to order. The Department has for some years
    past paid the Indians under these treaties $4 per capita, the mount necessary
    to enable it to do so having been voted annually by Parliament, but it is
    considered that, owing to the immense revenue derived from the sales of land
    and timber within the territory ceded by the Indians under the above treaties
    to the Crown, the amount of annuity might fairly be increased to such further
    sum as Her Majesty may be pleased to order.

[183]

In response, Vankoughnet stated that the point to which you refer
    will not be lost sight of but stated also that it is very questionable
    whether the provision in these treaties to which you refer can be made the
    basis of any legal claim against the Province of Canada.

[184]

While these documents do not support the
trial
judges interpretation, they do undermine Ontarios argument
    that the post-Treaty evidence demonstrates one unequivocal understanding of the
    augmentation clause among Crown officials.

(iii)

Conclusion on the Trial Judges Treatment of the Evidence Concerning
    Crown Intention

[185]

The
trial
judge did not err in her treatment
    of the evidence of the Crowns intentions upon entering the Robinson Treaties or
    in determining the common intentions of the Treaty parties.

[186]

To be helpful, post-treaty evidence must be capable of shedding
    light on the intention or interests of one or more of the parties at the time
    the treaty was signed. The extent to which a document does so will depend not
    only on its contents, but on its temporal proximity to treaty formation, its
    connection to treaty negotiations, and the context in which it was created.
    Taking these factors into account, the post-Treaty evidence upon which Ontario
    relies provides little assistance and the
trial
judge
    did not err in not relying on it.

[187]

The
    documents proximate to Treaty formation on which Ontario relies are consistent
    with the
trial
judges interpretation of the
    augmentation clause. The post-Treaty evidence, on which Ontario largely focused
    its submissions, is incapable of establishing a contrary Crown intention. The
trial
judge did not make a palpable and overriding error in her
    treatment of this evidence.

(b)

The Trial Judge Did Not Err in Her
    Determinations on the Existence and Extent of Crown Discretion in the
    Augmentation Clause

[188]

Ontarios
    second basic argument on the trial judges interpretation of the augmentation
    clause is that she erred in finding that the Crowns discretion under the
    augmentation clause was not unfettered.

[189]

To
    recall the context, Ontarios position is that
the $4 per
    person amount specified in the Treaties is a hard cap that fixes both the
    annuity paid to entitled individuals and the total amount of the annuity
    payable. Ontario submits that the Crown has unfettered discretion as to when
    and whether it will increase the per person annuity, and therefore the total
    annuity paid, beyond the $4 per person cap.

[190]

At
    trial, both Ontario and Canada submitted that the law gave them unfettered
    discretion concerning how they will meet their treaty obligations.
[124]
Canada has not appealed the judgments below. On appeal, Canada
    agrees with the
trial
judges finding that the Crown is
    obliged, under the Treaties, to increase the annuities beyond $4 per person.
    Canada now submits that the Crown retains discretion in fulfilling this
    obligation but that this discretion is not unfettered.

[191]

We begin by setting out the governing principles concerning the
    existence and scope of governmental discretion. We next summarize the
trial
judges decision concerning Crown discretion and then apply
    the governing principles to Ontarios arguments.

(i)

The Governing Principles Concerning Discretion

[192]

In the seminal
Baker
decision, LHeureux-Dubé J. noted: The concept of discretion refers to
    decisions where the law does not dictate a specific outcome, or where the
    decision-maker is given a choice of options within a statutorily imposed set of
    boundaries.
[125]
It is now trite law that there is no such thing as absolute and untrammelled
    discretion.
[126]
Where discretion is granted by statute, that discretion, said LHeureux-Dubé
    J., must be exercised in accordance with the boundaries imposed in the
    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
.
[127]
These boundaries set a reasonable 
margin of

manoeuvre for
a decision-maker
    exercising
discretion.
[128]


[193]

These principles apply
    with necessary modifications to the exercise of Crown discretion related to
    treaties with First Nations. The most significant constraints on the Crown in
    the context of this case are the Treaty promises made by the Crown, s. 35 of the
Constitution Act
,
1982
, including its reconciliatory
    imperative, and the honour of the Crown.

(ii)

The Trial Judges Treatment of Crown Discretion

[194]

The trial judge found
    that the promise in the augmentation clause to increase the annuity is not
    discretionary but mandatory; the $4 cap is only a cap on annual payments to
    individuals and does not limit the total annuity payable under the Treaties; and
    the Crown has discretion in the implementation of the Treaty promise, including
    when and how it provides information to the Anishinaabe to assess the
    reasonableness of the Crowns calculations of net Crown revenues
[129]
and whether to raise the $4 cap on the annuity payable to individuals.
[130]
She stated: The discretion is not unfettered and is subject to [judicial] review,
    and noted that Crown discretion in the implementation process must be
    exercised honourably and with a view to fulfilling the Treaties promise.
[131]


(iii)

Ontarios Arguments

[195]

Ontario makes four
    arguments in support of its position that the power to increase annuities is
    unfettered: the first is based on the text of the graciousness clause and its
    location in the augmentation clause; the second is that the decision to
    increase the annuities is not justiciable; the third is that the trial judge
    erred in her evidentiary finding on the role of discretion in determining the
    common intention of the Treaty parties; and the fourth relates to the honour of
    the Crown. We address the first three in turn and the honour of the Crown under
    the second issue, which follows immediately.

(i)

The Textual Argument

[196]

Ontario argues that
    the phrasing of the graciousness clause in the augmentation clause is a
    particularly potent conferral of unfettered discretion on the Crown. The
    graciousness clause provides: or such further sum as Her Majesty may be
    graciously pleased to order. This language evokes the royal prerogative.
    Ontario argues that the language of the graciousness clause modifies the entire
    augmentation clause, making any increase to the annuity beyond its current
    level completely discretionary.
[132]


[197]

We disagree for
    textual reasons and for reasons of principle.

[198]

The trial judges
    interpretation of the augmentation clause is consistent with and is supported
    by the text of the augmentation clause. The structure of the augmentation
    clause makes it clear that the graciousness clause applies only to the per
    person annuity, not to the collective annuity. It does not modify the entire
    augmentation clause. To see this, it is helpful to depict the structure of the
    augmentation clause in its constituent parts, with some explanatory notes and
    emphasis added.

[199]

The collective annuity
    promise comes first:

[F]or the further perpetual annuity of six hundred pounds of
    like money, the same to be paid and delivered to the said Chiefs and their
    Tribes at a convenient season of each year



Her Majesty
and the Government of
    this Province, hereby
promises and agrees to make, or
    cause to be made, the payments as before mentioned.

[200]

The main
    text of the augmentation clause states:

Her Majesty
, Who desires to deal
    liberally and justly with all Her subjects,
further
    promises and agrees
that
should the territory
    hereby ceded
by the parties of the second part
at
    any future period produce such an amount as will enable the Government of this
    Province, without incurring loss
,
to increase the
    annuity hereby secured to them
, then
and in that
    case the same shall be augmented from time to time
,

[201]

Then comes the first
    proviso, which specifies the amount paid to individuals and contains the
    graciousness clause:

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
;

[202]

Then comes the second
    proviso followed by the diminution clause:

and provided further that the number of Indians entitled to the
    benefit of this treaty shall amount to two-thirds of their present number,
    which is fourteen hundred and twenty-two, to entitle them to claim the full
    benefit thereof; and should they not at any future period amount to two-thirds
    of fourteen hundred and twenty-two, then the said annuity shall be diminished
    in proportion to their actual numbers.

[203]

Structurally, the
    textual breakdown shows plainly that the graciousness

clause does not
    apply to the entire augmentation clause but only to the first proviso, which
    sets the annuity for individuals.

[204]

Textually, in terms of
    the language, Crown compliance with the augmentation clause is mandatory
    because the clause expressly states that should the ceded territory produce
    sufficient revenue to enable increasing the annuity without incurring loss,
    then and in that case the same
shall be augmented
from time to time. Up to that point in the text of the augmentation clause,
    the only antecedent to which the same could relate is the collective annuity
    already mentioned, being the further perpetual annuity of six hundred pounds
    of like money. In our view, because the graciousness clause is part of the
    first proviso, it cannot dominate the augmentation clause and reduce its
    mandatory wording (shall be augmented) into a gratuitous exercise of the
    Crowns unfettered discretion (such further sum as Her Majesty may be
    graciously pleased to order), as Ontario argues. The graciousness clause
    applies only to the per person annuity in the first proviso (the amount paid
    to each individual), which is capped in the text at $4.

[205]

As a matter of
    principle, there is, in any event, no such thing as an unfettered discretion,
    as we have already established.

(ii)

Justiciability

[206]

To set the context for this issue, we first set out Ontarios
    position, next the governing principles on justiciability, and then apply the
    principles to Ontarios argument.

Ontarios Position on Justiciability

[207]

Ontario invokes the doctrine of justiciability, in part, to
    reinforce its claim that Crown discretion under the augmentation clause is
    unfettered. Ontario attacks the trial judges finding that the augmentation
    clause requires the Crown to pay a fair share of net Crown resource-related
    revenues on the basis that [n]othing in the historical record suggests that
    this abstract concept was discussed during the Treaty negotiations, much less
    agreed upon. Accordingly, Ontario argues: The
    absence of common intention on what constitutes a fair share also implies
    that should the parties fail to reach agreement on this concept, the courts
    will have to create a definition in a legal vacuum.  Ontario asserts: What is fair in the abstract, considered apart from
    legal principles or common intention, is not a justiciable question; it is a
    moral or policy question on which many different views and perspectives are
    possible. The question does not have a sufficient legal component to be
    justiciable.

[208]

Ontarios argument
    concludes dramatically:

In defining what is a fair share under the judgments below,
    the courts would be making policy decisions with respect to limited Crown
    finances, thereby entering a field that Canadian courts have appropriately
    viewed as being outside the proper function of the judiciary. In the result, a
    Crown discretion to increase annuities has been replaced in the judgments below
    by a judicial discretion in relation to Crown finances that is not grounded in
    common intention or legal principles.

The Governing Principles Concerning Justiciability

[209]

The doctrine of
    justiciability imposes limits on judicial review of executive action. It is
    based on the sense that there are public policy issues that are beyond the
    jurisdiction of the courts. Stratas J.A. noted:

In rare cases  exercises of executive power are suffused with
    ideological, political, cultural, social, moral and historical concerns of a
    sort not at all amenable to the judicial process or suitable for judicial
    analysis. In those rare cases, assessing whether the executive has acted within
    a range of acceptability and defensibility is beyond the courts ken or
    capability, taking courts beyond their proper role within the separation of
    powers.
[133]

Examples of such rare cases would include the
    deployment of military assets, entering into foreign treaties, and addressing
    homelessness.

[210]

The issue of
    addressing homelessness was raised in
Tanudjaja
,

where the
    court found that there was no sufficient legal component to engage the
    decision-making capacity of the courts, and that [i]ssues of broad economic
    policy and priorities are unsuited to judicial review.
[134]
The application in that case asked the court to embark on a course more
    resembling a public inquiry into the adequacy of housing policy.
[135]
The court noted, the issue is one of institutional competence [and] whether
    there is a sufficient legal component to anchor the analysis and concluded
    that the application was not justiciable.
[136]


The Principles Concerning Justiciability Applied

[211]

In our view the
    doctrine of justiciability has no application to this case, for three reasons.
    First, here the court is not reviewing executive action in the abstract. The
    courts task is to interpret the augmentation clause in the Treaties in the
    context in which they were negotiated. The interpretation and enforcement of
    treaty obligations is core judicial business.
[137]


[212]

Second, Ontarios
    justiciability argument does not turn on the language of the augmentation
    clause but on the trial judges adoption of the expression fair share.
    However, Ontarios justiciability argument cannot be based on the result of the
    trial judges interpretation. Either a question is justiciable or it is not. If
    it is justiciable, then the courts answer might be wrong, but the result
    cannot logically convert the question from one that is justiciable into one
    that is not.

[213]

Ontarios argument
    must be treated as an assertion that the trial judge erred in adopting the term
    fair share, not that the interpretation is not justiciable. As we will
    explain below, we agree that it was unhelpful for the trial judge to adopt the
    concept of fair share, but her doing so cannot form the basis of a
    justiciability argument.

[214]

Third, and relatedly,
    there is a sense in which Ontario is making an argument based on the possibly
    catastrophic impact of a large judgment on the fiscal state of the Province,
    thereby reducing its capacity to deal effectively with its other
    responsibilities. We draw this inference from the language of Ontarios factum:
    the courts would be making policy decisions with respect to limited Crown
    finances, thereby entering a field that Canadian courts have appropriately
    viewed as being outside the proper function of the judiciary. But this is not
    what the court is tasked to do nor what it will do. In the end there might be a
    financial judgment that Ontario will have to pay, like any party that is in
    breach of an agreement. The court is simply requiring the Crown to comply with
    the Treaties. Accordingly, Ontario is making an argument based solely on
    consequences, which is not a true justiciability argument.

[215]

For these reasons, we do
    not consider justiciability to be a viable basis on which to find that the
    augmentation clause gave the Crown unfettered discretion over whether and when
    to increase the annuities.

(iii)

The Argument on the Evidence as to the Nature of the Crowns Discretion

[216]

The trial judge found
    that the promise in the augmentation clause to increase the annuity is
    mandatory, not discretionary, but that the Crown has a measure of discretion in
    the implementation of the Treaty promises. Ontario attacks the evidentiary
    basis for her finding that the promise to increase the annuity is not
    discretionary.

[217]

In the course of her
    reasoning, the trial judge found there to be no historical record that Robinson
    explained the notion of discretion to the Anishinaabe. She stated:

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 Majestys graciousness, if such concepts
    had been embedded into the Treaties.
And, therefore, such
    concepts could not have informed the common intention of the parties.
[138]

[218]

Ontario bases its
    challenge on the last sentence: such concepts could not have informed the
    common intention of the parties. Ontario asserts that the trial judges
    finding that discretion was not understood by the Chiefs is inconsistent with her
    plain finding that the augmentation clause gave the Crown discretion over
    increases to the $4 cap on distribution to individuals and discretion in
    implementation. Read literally, that sentence (such concepts could not have
    informed the common intention of the parties) would mean that no element of
    the Treaties could engage the Crowns discretion because Crown discretion did
    not form part of the common intention of the Treaty parties.

[219]

Seeking to avoid the
    risk that such a reading would pose to its argument that the Crown has plenary
    discretion under the Treaties, Ontario essentially makes a two-step argument. The
    first step is that the trial judge was palpably wrong and Robinson successfully
    conveyed the concept of Crown discretion at the Treaty Council. The second step
    is that Crown discretion, the meaning of which Robinson correctly conveyed and
    which then formed part of the common intention of the parties, was unfettered. We
    agree with the first step, but Ontarios argument falters at the second.

[220]

Relevant to the first
    step, Ontario submits that the concept of discretion in a leader is not
    inherently difficult to explain, that there were interpreters and advisers at
    Treaty Council who were not Crown actors, and that the evidence from Elder Rita
    Corbiere, a contemporary witness, contradicts the trial judges assertion that
    the Anishinaabe would not have understood the concept of discretion. We agree
    that Robinson is likely to have conveyed, and the Anishinaabe are likely to
    have understood, the concept of discretion.

[221]

However, this is not a
    palpable and overriding error that undermines the trial judges interpretation.
    Instead, in our view, the correct analysis is simple: the trial judge simply
    misspoke. What she meant to say was not, such concepts could not have informed
    the common intention of the parties but instead, such concepts
of unfettered discretion
could not have informed the
    common intention of the parties. Most obviously, in light of her numerous
    references to ongoing Crown discretion, the trial judge did not intend to
    exclude all Crown discretion, just unfettered discretion.

[222]

This reading of the trial
    judges reasons is supported by the record. In its written closing submissions
    on the motions, under the heading Common Intention, Ontario argued that
    Robinson would not have understood the augmentation clause as creating an
    obligation to increase annuities beyond an amount equal to $4 per person under any
    circumstances.
[139]
Because Robinson was motivated to accurately communicate the meaning of the
    Treaties at Treaty Council, he took steps through skilled interpreters to
    explain the Treaties so as to avoid any misunderstanding. Ontario argued that
    he was successful in doing so. Ontario pointed to Robinsons statement, in his
    Treaty Report, that he had no difficulty in making [the Anishinaabe]
    comprehend the augmentation clause. Ontario argued that Robinson was better
    placed than anyone alive today to assess whether he had successfully
    communicated the meaning of the augmentation clause.

[223]

The trial judge asked:
    What can we take from Robinsons many references in his diary and Official
    Report that the Chiefs were satisfied after the Treaties were read out,
    interpreted and explained to them?
[140]
Contextually, we read this section of the trial judges reasons as her response
    to Ontarios arguments that Robinsons supposed understanding of the
    augmentation clause  that the Crowns discretion to augment was unfettered 
    should be assumed to have been communicated successfully to the Anishinaabe.

[224]

The trial judge noted
    Ontarios submission that the Anishinaabe had the benefit of multiple
    interpreters who were skilled cross-cultural translators.
[141]
According to one expert, the interpreters at the Treaty Council were a genuine
    part of the multicultural world of the upper Great Lakes region. The trial judge
    accepted that the interpreters explained the shall not exceed £1 provision in
    the augmentation clause and that there is no record of any complaints.
[142]
She added: There is no record of Robinson himself explaining the cap, the
    notion of discretion, or royal prerogative.
[143]

[225]

The trial judge then
    described the difficulties of interpreting legal terms to lay people and the
    large cultural gap between the Treaty parties, before making the comments,
    quoted earlier, in which Ontario claims she erred.

[226]

Contextually, however,
    in making these comments, the trial judge is best understood to be noting that
    the fact that the augmentation clause was interpreted or explained to the
    Anishinaabe does not mean they would have understood discretion in the
    augmentation clause as operating in the manner Ontario now claims, that is, as
    an unfettered Crown discretion, not subject to any defined set of factors,
    over increases beyond $4 per person.
[144]

[227]

The trial judge cited
    Elder Corbieres testimony 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.
[145]
Elder Corbieres testimony strongly suggested that the Anishinaabe would not
    have understood sole or unfettered discretion in a leader, which is the form of
    discretion that Ontario argues was embedded in the augmentation clause and
    successfully communicated to the Anishinaabe. This concept, of a leader
    choosing to act arbitrarily without regard for the needs, requests, or
    expectations of others, could not have been communicated to the Anishinaabe
    because it is not consistent with Anishinaabe conceptions of leadership or
    their expectations of the Crown. It is therefore unlikely to have been what the
    Anishinaabe understood from an interpretation and explanation of the
    augmentation clause.

[228]

The trial judge was
    entitled to rely on this evidence and to draw from it the inference that the
    Anishinaabe could not have understood the concept of a leader exercising
    discretion arbitrarily because it would have been incomprehensible to the
    Anishinaabe that a leader, including the Queen, would assert unfettered
    discretion, and be empowered to act in a manner unbound by the principles
    described by Elder Corbiere.
[146]
The trial judge did not accept that the Anishinaabe would have understood the
    augmentation clause as permitting the Crown to refuse to increase the annuity
    after it reached the equivalent of $4 per person, no matter the revenues
    produced by the land.

[229]

The trial judge did
    not err in assessing the Anishinaabe understanding of Crown discretion. Her
    findings on common intention and her interpretation of the augmentation clause
    to the effect that Crown discretion was not unfettered were not based on Elder
    Corbieres statements alone, but on a careful examination of the historical and
    cultural context in which the Treaties were negotiated and signed. This was
    completely within the trial judges remit and we do not discern an error.

[230]

The trial judge did
    not err in her analysis of the form and content of the Crowns discretion, or
    the First Nations understanding of the scope of that discretion, contrary to
    Ontarios argument.

C.

Issue Two: Did the Trial Judge Err in Finding that the Doctrine of the
    Honour of the Crown Obliges the Crown to Increase the Annuities as Part of its
    Duty to Diligently Implement the Treaties?

[231]

We begin with the
    governing principles, next set out the trial judges reasons, the positions of
    Ontario and Canada, and then our analysis. The context is set by Ontarios
    position that, in the circumstances, the honour of the Crown is procedural only
    and does not give rise to fiduciary duties to the Treaty First Nations.

(1)

The Governing Principles Concerning the Honour of the Crown

[232]

The honour of the
    Crown has been recognized as a legal principle applying to treaties since at
    least 1895,
[147]
but its roots are far deeper.
[148]
It is historically linked to the
Royal Proclamation of 1763
(the
    Royal Proclamation)
[149]
and engaged by s. 35 of the
Constitution Act, 1982.
[150]
In
Haida Nation
, McLachlin C.J. explained:

The historical roots of the principle of the honour of the
    Crown suggest that it must be understood generously in order to reflect the
    underlying realities from which it stems. In all its dealings with Aboriginal
    peoples, from the assertion of sovereignty to the resolution of claims and the
    implementation of treaties, the Crown must act honourably. Nothing less is
    required if we are to achieve the reconciliation of the pre-existence of
    aboriginal societies with the sovereignty of the Crown.
[151]

[233]

We repeat McLachlin
    C.J.s strong statement: The controlling question in all situations is what is
    required to maintain the honour of the Crown and to effect reconciliation
    between the Crown and the Aboriginal peoples with respect to the interests at
    stake.
[152]
The honour of the Crown is always at stake in the Crowns dealings with
    Aboriginal people.
[153]
According to McLachlin C.J., this statement is not a mere incantation, but
    rather a core precept that finds its application in concrete practices.
[154]


[234]

The honour of the
    Crown infuses the process of treaty interpretation,
[155]
and is an important anchor.
[156]
Further: The Crowns honour cannot be interpreted narrowly or technically, but
    must be given full effect in order to promote the process of reconciliation
    mandated by s. 35(1).
[157]
The honour of the Crown gives rise to justiciable duties.
[158]
While not a cause of action in itself,

[159]
the honour of the Crown can also be the subject of a declaration.
[160]

[235]

Brian Slattery argues
    that in
Haida Nation
and
Taku River
, we witness the
    emergence of a new constitutional paradigm governing Aboriginal rights built
    around the doctrine of the honour of the Crown.
[161]
In his book,
The Honour and Dishonour of the Crown: Making Sense of
    Aboriginal Law in Canada
, Jamie D. Dickson makes an extended
    argument that since
Haida Nation
,
the doctrine of the honour of the Crown has begun to displace fiduciary duty as
    the principal means by which the court assesses Crown actions under treaties.
    He states:

[T]he fundamental conceptualisation of Crown obligations in
    Aboriginal contexts was entirely reset upon (a) explicitly, the core principle
    that the Crown is legally mandated to always act honourably in its dealings
    with Aboriginal peoples, and (b) implicitly, the notion that the regulation of
    the mischief of Crown dishonour involving Aboriginal peoples is the
    predominant, if not the exclusive, function of Aboriginal law.
[162]


[236]

The caselaw bears out
    Dicksons prediction, flowing from
Haida Nation
, that in giving
    content to sparsely defined treaty promises courts will utilize the doctrine of
    the honour of the Crown, not fiduciary duty. He notes:

As the doctrinal anchor of Aboriginal law  as it was described
    by Justice Binnie in
Little Salmon/Carmacks
 the honour of the Crown
    principle describes the core mandate of this area of law  that the Crown is to
    act honourably in its dealings with Aboriginal peoples  and operates to give
    rise to specific and enforceable obligations, the breach of which by the Crown
    violates the anchor principle.
[163]


[237]

In
Mikisew Cree
(2018), Karakatsanis J. noted:

This Court has repeatedly found that the honour of the Crown
    governs treaty making and implementation, and requires the Crown to act in a
    way that accomplishes the intended purposes of treaties and solemn promises it
    makes to Aboriginal peoples. Treaty agreements are sacred; it is always
    assumed that the Crown intends to fulfill its promises. No appearance of sharp
    dealing will be permitted.
[164]


[238]

In
Haida Nation
,
    McLachlin C.J. pointed out that: The honour of the Crown gives rise to
    different duties in different circumstances.
[165]
In
Manitoba Metis
, McLachlin C.J. and Karakatsanis J. note that [w]hat
    constitutes honourable conduct will vary with the circumstances, and that the
    duty that flows from the honour of the Crown varies with the situation in which
    it is engaged.
[166]
The incidents of the honour of the Crown that may apply include a fiduciary
    duty when the Crown assumes discretionary control over a specific Aboriginal
    interest.
[167]
It is instructive that in
Manitoba Metis
the court found that the honour
    of the Crown did not give rise to a fiduciary duty
[168]
even though the honour of the Crown was breached.
[169]

[239]

As an example of the
    more nuanced approach, McLachlin C.J. noted in
Haida Nation
that:

[W]hile the Crowns fiduciary obligations and its duty to
    consult and accommodate share roots in the principle that the Crowns honour is
    engaged in its relationship with Aboriginal peoples, the duty to consult is
    distinct from the fiduciary duty that is owed in relation to particular
    cognizable Aboriginal interests.
[170]

[240]

The most common cases in
    which the court has imposed fiduciary duties on the Crown as an incident of its
    honour are those where the Crown controls the disposition of reserve property,
    including the taking up of reserve lands or lands subject to a treaty. Examples
    include
Guerin
,
Grassy Narrows
, and
Southwind
.
[171]
There are also cases where the court did not rely on fiduciary duty in which
    the complaint was that the Crown had not given full effect to a treaty,
    including
Marshall
, or had not complied with the duty to consult.
[172]

[241]

The honour of the
    Crown demands the purposive interpretation of treaties by the courts and by the
    Crown.
[173]
The Crown must act diligently in pursuit of its solemn obligations and the
    honourable reconciliation of Crown and Aboriginal interests
[174]
and diligently pursue implementation of treaty promises
[175]
in order to achieve their intended purposes.
[176]
This duty of diligent implementation is narrow and circumscribed.
[177]
Like the duty to consult, it is distinct from fiduciary duties. To fulfil the
    duty of diligent implementation, Crown servants must seek to perform the
    obligation in a way that pursues the purpose behind the promise.
[178]
Implementation need not be perfect, but a persistent pattern of errors and
    indifference that substantially frustrates the purposes of a solemn promise may
    amount to a betrayal of the Crowns duty to act honourably in fulfilling its
    promise.
[179]


[242]

These are the duties
    that arise from the honour of the Crown in relation to the promises made in the
    Robinson Treaties. The question then becomes whether the concept of fiduciary
    duty has any work to do that is not done by the honour of the Crown and its
    duty of diligent implementation. We address this question below.

(2)

The Trial Judges Reasons

[243]

The trial judge
    stated:

The honour of the Crown requires that the Crown fulfil their
    treaty promises with honour, diligence, and integrity. The duty of honour also
    includes a duty to interpret and implement the Treaties purposively and in a
    liberal or generous manner. The Defendants accept this characterization of
    their duties.
[180]


[244]

She added immediately:
    As I have found, there is also an ad hoc fiduciary duty on the part of the
    Crown.
[181]

The trial judge often linked the honour of
    the Crown and fiduciary duties in her reasons without making any distinction
    between the two.
[182]
The issue was squarely raised in argument
[183]
but she sidestepped it, taking the view that it was not necessary to decide
    which of the honour of the Crown or fiduciary duty has primacy over the
    other.
[184]
Her concern appears to be to leave open the possibility of equitable damages.
[185]

[245]

Finally, the trial
    judge noted: Whether the Crown has consistently fulfilled its duties to
    purposively and diligently interpret and implement the Treaties or whether the
    Crown has breached its duties are not Stage One issues.
[186]
But she overcame this diffidence, making several strong statements:

Since 1850 the Crown has acted with unfettered discretion in
    their interpretation and implementation of the Treaties, in a way that has
    seriously undermined their duty of honour. This left the Treaties promise
    completely forgotten by the Crown.
[187]

It seems to me that the real problem is not so much that the
    financial circumstances changed in the 168 years since the Treaties were
    signed; the real problem is that the augmentation promise was ignored for that
    entire period.
[188]


[N]or should the Crown benefit from their neglect of the
    Treaties provisions for over 150 years and thereby escape their obligation of
    honourable implementation of the Treaties terms. At the implementation stage,
    the Crown is obliged, by virtue of the doctrine of the honour of the Crown, to
    purposively interpret and implement the Treaties terms.
[189]

(3)

The Position of Ontario on the Honour of the Crown

[246]

Ontario makes two
    arguments concerning the honour of the Crown. The first is linked to its
    primary argument that the Crown has unfettered discretion to augment the
    annuities or to decline to do so. Consistent with that position, Ontario
    asserts that in exercising its discretion under the aegis of the honour of the
    Crown, the Crown has only procedural duties, which Ontario sets out in four
    propositions:

·

the Crown must engage in the exercise of the discretion upon
    request by a Treaty First Nation, and from time to time in any event;

·

the Crown should engage honourably with the Treaty First Nations
    in the exercise of the discretion, meaning that the process the Crown chooses
    to follow must uphold the honour of the Crown, and can be challenged on the
    basis that it failed to do so;

·

the Crown must engage with Treaty First Nations in relation to
    the analysis of net Crown resource-based revenues, including providing
    sufficient information to allow them to independently assess the analysis performed
    by the Crown; and

·

an honourable process includes providing Treaty First Nations
    with an explanation of any decision reached, though this would not require
    formal reasons.

[247]

Ontarios second
    argument is that the honour of the Crown does not require the imposition of
    fiduciary duties on the Crown respecting these Treaties and that the trial
    judge erred in imposing them.

(4)

The Position of Canada on the Honour of the Crown

[248]

Canada did not appeal
    the judgment and agrees that the Crown has Treaty obligations to increase the promised
    annuity payments from time to time if Crown resource-based revenues from the
    Treaties territories permit. Canada submits that the Crown retains
    discretion with respect to the implementation and fulfilment of those obligations;
    but its discretion is not unfettered and is subject to judicial review. The
    constraints include the terms of the Treaties, the duty of purposive treaty
    interpretation, the honour of the Crown, and the reconciliatory imperative of s.
    35 of the
Constitution Act, 1982
. Canada did not address the
    relationship between the honour of the Crown and fiduciary duties.

(5)

The Principles Concerning the Honour of the Crown Applied

[249]

The trial judge stated
    that the honour of the Crown requires the Crown to fulfil the Treaty promises
    with honour, diligence, and integrity, including the duty to interpret and
    implement the Treaties purposively and in a liberal or generous manner.
[190]
This is consistent with the authorities.

[250]

The trial judge
    correctly found that the Crown has a mandatory and reviewable obligation to
    increase the Treaties annuities when the economic circumstances warrant.
[191]
She specified that: The economic circumstances will trigger an increase to the
    annuities if the net Crown resource-based revenues permit the Crown to increase
    the annuities without incurring a loss.
[192]
This is the core Treaty promise that must now be diligently implemented by
    virtue of the honour of the Crown.

[251]

Consequently, we would
    not accept Ontarios argument that, in this case, the honour of the Crown can
    be reduced to a series of procedural requirements. Where the honour of the
    Crown is involved, fairness to the Indians is a governing consideration.
[193]
As Thomas Isaac notes, [t]he notion of fairness in interpretation seemed to
    indicate, even at a relatively early stage, that the honour of the Crown was
    meant to ensure just outcomes, rather than solely procedural fairness.
[194]


[252]

We agree with Ontario
    that the honour of the Crown does impose procedural requirements at least equal
    to those Ontario proposes. We would not go further in specifying these
    procedural requirements. They are properly the subject of rulings to be made in
    Stage Three of these proceedings.

[253]

However, these
    procedural requirements are not all that the honour of the Crown requires. The
    honour of the Crown, together with s. 35, requires that the Crown diligently
    implement the Treaty promise. This is the standard against which the Crowns
    incidental discretionary decisions in the implementation process are to be
    assessed. All of those decisions are subject to judicial review. The relevant
    question, on review, will be: Viewing the Crowns conduct as a whole in the
    context of the case, did the Crown act with diligence to pursue the fulfillment
    of the purposes of the Treaty promise?
[195]

[254]

We turn to the issue
    the trial judge declined to resolve, which she expressed as which of honour of
    the Crown or fiduciary duty has primacy over the other.
[196]
With respect, the honour of the Crown and fiduciary duty are not in
    competition. The honour of the Crown can give rise to fiduciary duties in
    circumstances where such duties are necessary and appropriate.

[255]

The trial judge found
    the imposition of a fiduciary duty necessary, in part, to ensure the
    availability of equitable remedies. She noted that, in addition to the
    obligations imposed by the honour of the Crown, a finding of a fiduciary duty
    may impose additional duties on the Crown, as well as open up an array of equitable
    remedies.
[197]
These are remedies that, the trial judge suggested, at this time are not
    available under the principle of the honour of the Crown.
[198]
She found that the question of fiduciary duties could not be ignored because a
    different model may be developed at some future point.
[199]

[256]

In the particular
    circumstances, does the concept of fiduciary duty have any work to do that is
    not already being done by honour of the Crown? In
Peter Ballantyne Cree
    Nation
, the Court of Appeal for Saskatchewan endorsed Dicksons view, set
    out above, that the generalized fiduciary obligation (in form, a principle
    that calls for honourable conduct) has been largely replaced by the honour of
    the Crown principle which effectively mandates the same thing.
[200]
We agree.

[257]

The different model
    to which the trial judge refers appears to be the honour of the Crown and the
    duty of diligent implementation. While the duty of diligent implementation has
    received only recent and isolated application as a basis for remedies in the treaty
    context,
[201]
it is not a novel addition to the law and is recognized in many authorities.
[202]
Where the duty is breached, a court may order remedies aimed at ensuring that
    the Crown fulfills its treaty promises.

[258]

We agree with
    Hourigan J.A. that fiduciary duty has no work to do in this case that cannot be
    done by honour of the Crown alone. The development of the doctrine counsels
    against imposing fiduciary duties where they are not required, and they are not
    required in this case.

D.

Issue Three: Did the Trial Judge Err in Finding There Was No Implied
    Term for the Indexation of the Annuities?

[259]

Ontario submits that
    the trial judge erred in refusing to accept that the annuities paid pursuant to
    the Robinson Treaties should be indexed to mitigate the impact of inflation.
    Ontario argues that, although the Treaties do not contain any legally
    enforceable obligation to increase the annuities beyond a contractual $4 per
    person cap, applying the common-law test for implication of contractual
    terms, so as to add a proviso indexing that cap, would restore the purchasing
    power intended by the Treaty partners and would be consistent with the honour
    of the Crown. Canada takes the position that the trial judge was correct in
    declining to imply such a term. The Huron and Superior Plaintiffs see no need
    to imply indexing if the Treaties oblige the Crown to increase the annuity from
    time to time, when the revenues generated by the ceded lands permit the Crown
    to do so without incurring a loss.

(1)

The Trial Decision on Indexation

[260]

As noted, the Treaties
    provide that the annuity  shall be augmented from time to time, 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 (emphasis added).

[261]

At trial, Ontario
    pleaded that one pound Provincial currency, equivalent to $4, should be
    indexed to mitigate inflation but, as discussed, took the position that this
    sum was a cap and that it has no obligation other than to consider augmenting
    the individual annuity over this indexed amount. The precise inflation-adjusted
    value of the cap would be left for the trial judge to determine at Stage Three
    of these proceedings. On appeal, Ontario acknowledges that an
    inflation-adjusted cap would be relevant both to Ontario and Canadas
    continuing obligations under the Treaties and to any calculation of damages.

[262]

Both the Huron and
    Superior Plaintiffs agreed that one pound Provincial currency should be
    indexed, but only if their principal argument  that the Treaties oblige the
    Crown to increase a collective annuity in step with increases to territorial
    revenue  were to fail. Canada took the position that, given inflation was
    unknown in 1850, the parties would not have turned their minds to the question
    of indexation and, thus, implying a term would be inappropriate.

[263]

The trial judge was
    not persuaded that the parties would have agreed to an indexation clause, had
    the then-unknown concept of persistent inflation and erosion of purchasing
    power been explained to them at the time of the Treaties.
[203]
This was just one of many unforeseen changes affecting the Treaty partners over
    the following 170 years.
[204]
She observed that the Treaties contained both an augmentation clause and a
    diminution clause, intended by the parties to deal with changing circumstances.
[205]
The Robinson Treaties were unique in providing for an augmentation of the
    annuities which, she found, were linked to increases in the territorial revenue
    and which would thereby adjust the future value of the annuities.
[206]
She accordingly refused to imply a Treaty term for indexation of the annuities
    but noted that [i]n treaties without an augmentation provision, different
    considerations could quite possibly result in different responses to this
    claim.
[207]

(2)

Analysis

[264]

There is no doubt that
    courts may imply terms into treaties on the basis of the presumed intentions of
    the parties, where necessary to give effect to treaty promises or where doing
    so meets the officious bystander test. In
Marshall
, the accused  a
    Mikmaq man  was charged with offences under federal fishery regulations. He
    asserted a treaty right to fish. The treaty contained a Mikmaq promise not to
    trade any commodities except with the managers of certain trading posts, known
    as truckhouses, or persons appointed by the Crown. The treaty did not contain
    any reference to a continued right to fish.

[265]

Binnie J. observed:

Here, if the ubiquitous officious bystander had said, This
    talk about truckhouses is all very well, but if the Mikmaq are to make these promises,
    will they have the right to hunt and fish to catch something to trade at the
    truckhouses?, the answer would have to be, having regard to the honour of the
    Crown, of course.
[208]

[266]

And further:

This was not a commercial contract. The trade arrangement must
    be interpreted in a manner which gives meaning and substance to the promises
    made by the Crown. In my view, with respect, the interpretation adopted by the
    courts below left the Mikmaq with an empty shell of a treaty promise.
[209]

[267]

The court concluded
    the treaty at issue, in restricting the trade of fish, implied a continued
    right to fish in a manner sufficient to produce a moderate livelihood. As
    Binnie J. put it, nothing less would uphold the honour and integrity of the
    Crown in its dealings with the Mikmaq people to secure their peace and
    friendship.
[210]

[268]

In the commercial
    context, courts will consider whether an implied term is necessary to give
    business efficacy to the agreement.
[211]
As noted in
Energy Fundamentals Group Inc.
:

Implication of a contractual term does not require a finding
    that a party actually thought about a term or expressly agreed to it. Often
    terms are implied to fill gaps to which the parties did not turn their minds.

On the other hand, a court will not imply a term that
    contradicts the express language of the contract or is unreasonable.
[212]

Courts will generally not imply a term where the
    agreements language addresses the particular contingency addressed by the
    proposed implied term.

[269]

In this case, the trial
    judge was correct to reject the proposal to imply an indexing term in the face
    of the parties choice, in the Treaties, to link increases in the annuities to
    the revenues generated by the ceded lands. There is no basis to supplant the
    augmentation clause with a judicially created indexing term which, over 170
    years, could produce widely different results, particularly given the various
    possible formulae for indexation.

[270]

Here, the Treaty
    beneficiaries are not left with an empty shell of a treaty promise in the
    absence of the proposed implied term.
[213]
As we explain elsewhere, the Huron and Superior Plaintiffs retain a meaningful
    and enforceable Treaty right, subject to substantive judicial review, that
    accommodates the risk of inflation. The honour and integrity of the Crown
    demand that it uphold
this
promise, not the implied promise Ontario
    advances in its stead.

E.

Issue Four: Did the Trial Judge Err in Her Approach to Remedies?

[271]

We begin with several
    observations to set the remedial context facing the trial judge. First, the
    trial judge cited the patent deficiencies and omissions in these historical
    Treaties. Even though they were meant to establish relationships in perpetuity,
    the Treaties are lean on details.
[214]
The trial judge noted that:

[T]he Treaties do not prescribe a protocol or a guide for the
    mechanics of implementing this promise
(i.e. the frequency, method, or
    factors to be considered, the corresponding duties that arise, or the scope or
    limits of review)
. Therefore, while it is not controversial that the
    duties flowing from the honour of the Crown bind the Crown (irrespective of the
    nature of the promise), the specific duties that arise in this case are
    undefined on the face of the Treaties.
[215]

[272]

The trial judge
    observed that because the Treaties are perpetual, they are not frozen at the
    date of signature.
[216]
But the lack of any effort to implement the augmentation clause in the Robinson
    Treaties, apart from the increase to the annuities in 1875, has resulted in a
    lack of guidance for future implementation:

The annuities were last increased in 1875.
    Therefore, regrettably, there is no set protocol, mechanism, or precedent for
    the process of considering increases to the annuities. Hence, the court and the
    parties must return to the shared goals, expectations, and understandings of
    the parties in 1850 and, based on those shared goals, expectations, and
    understandings, devise processes and procedures for the implementation of the
    Treaties promise in the modern era.
[217]

[273]

Binnie J. commented in
Little Salmon
:

The historical treaties were typically expressed in lofty terms
    of high generality and were often ambiguous. The courts were obliged to resort
    to general principles (such as the honour of the Crown) to fill the gaps and
    achieve a fair outcome.
[218]

[274]

Second, the trial judge
    expressed dismay at the positions taken in this litigation by Ontario and
    Canada,
[219]
implicitly echoing McLachlin C.J.s comment in
Taku River
that [t]he
    Provinces submissions present an impoverished vision of the honour of the
    Crown and all that it implies.
[220]
The trial judge noted that both Ontario and Canada reject the proposition that
    they have duties of disclosure or consultation in the implementation process.
[221]
This hard position, she said, flies in the face of Supreme Court authority on
    the honour of the Crown, leading her to note that: The duty of honour must
    find its application in concrete practices and in legally enforceable duties.
[222]
Those duties include both a duty to consult and a duty to disclose at least
    sufficient information to allow the parties to calculate net Crown resource
    revenues.
[223]

[275]

Third, these
    observations about the recalcitrance of both Ontario and Canada
[224]
led the trial judge to doubt the prospect of successful negotiations:

However, when negotiation fails to achieve a resolution or if
    the Crown refuses to negotiate, the Treaties beneficiaries are entitled to ask
    for judicial intervention. And if the Treaties beneficiaries issue a claim
    after 168 years of no action on the part of the Crown, the court cannot simply
    accept the Crowns acknowledgment of their duty of honour and permit the Crown
    to carry on without further direction.
[225]

[276]

The trial judge went
    on to craft the judgments under appeal with no confidence that a simple
    declaration without more judicial direction would trigger good faith
    negotiations. On the record before her, this was not an unreasonable
    assessment.

(1)

Ontarios Arguments

[277]

Ontario makes three
    arguments on remedies. First, the trial judge erred in excluding the costs of
    infrastructure and institutions from the calculation of net Crown resource-based
    revenues. Second, her fair share formulation is not supported on the
    evidence. Third, as framed, the remedy in the judgments is not justiciable. We
    found earlier that the justiciability argument has no merit. We address the
    remaining two issues in turn after setting out the relevant language of the
    judgments. We conclude with some observations on Stage Three in light of the
    matters addressed in this section of the reasons.

(2)

The Language of the Judgments

[278]

The context for all
    three issues is set by the terms of the formal judgments from the Stage One
    proceedings. For convenience, in our analysis, we will use the text of the judgment
    from the Huron action, which is materially the same as the text of the judgment
    from the Superior action. Our analysis applies equally to both judgments.

[279]

The trial judge found
    that the Treaties require the payment of a fair share of net Crown
    resource-based revenues to the First Nations.
Paragraph 1(a)
    of the operative part of the judgment from the Huron action provides:

Pursuant to the Robinson Huron Treaty of 1850, the Crown is
    obligated to increase, and the First Nation Treaty Parties have a collective
    treaty right to have increased, from time to time, the promised annuity payment
    of £600 (or $2,400) if net Crown resource-based revenues from the Treaty
    territory permit the Crown to do so without incurring loss,
with the amount of annuity payable in any period to correspond
    to a fair share of such net revenues for that period[.]
[Emphasis added.]

[280]

The
trial
judge added, at para. 1(d) of the
    judgment: 
The Crown must diligently implement the augmentation promise,
    so as to achieve the Treaty purpose of reflecting in the annuities
a fair share of the value of the resources, including the land
    and water in the territory
 (emphasis added).

[281]

The
    trial judge included guidance on the definition of net Crown resource-based
    revenues in paras. 3(b) and (c) of the judgment:

(b) For the purpose of determining the amount of net Crown
    resource-based revenues in a particular period:

i. relevant revenues to be considered are Crown resource-based
    revenues arising directly or in a closely related way to the use, sale, or
    licensing of land (which could include the waters) in the Treaty territory,
    including mineral and lumbering revenues and other analogous revenues as
    received by the Crown both historically and in the future, but not including
    personal, corporate or property tax revenues,

ii. relevant expenses to be considered are Crown expenses
    related to collecting, regulating, and supporting relevant revenues, but do not
    include the costs of infrastructure and institutions that are built with Crown
    tax revenues,

with these definitions to be applied as general principles that
    are subject to clarification and further direction by the Court in a future
    stage of this proceeding; and

(c) Failing agreement amongst the parties, the principles to be
    applied for purposes of determining amounts that are fairly and reasonably
    equal to a fair share of net Crown resource-based revenues are subject to
    further direction by the Court in a future stage of this proceeding.

(3)

The Definition of Net Crown Resource-Based Revenues

[282]

Ontario
    argues that the trial judge erred in excluding the costs of infrastructure and
    institutions built with Crown tax revenues from the calculation of net Crown
    resource-based revenues. To be fair to the trial judge, she embarked on this
    exercise at the behest of the Huron and Superior Plaintiffs
[226]
and against the opposition of Ontario and Canada, who urged her to proceed
    cautiously, arguing that the questions of what constitutes a revenue and an
    expense were better dealt with in Stage Three.
[227]
The trial judges ambivalence about deciding the issue is signalled by her
    comment that: I agree, to some extent, with both positions.
[228]
However, the trial judge accepted the Huron and Superior Plaintiffs argument
    that there was sufficient evidence before the court to articulate general
    principles.
[229]


[283]

The
    trial judge accepted the arguments of Ontario and Canada that tax revenues
    should not be considered in calculating net Crown resource-based revenues
[230]
and on that basis excluded the costs of the infrastructure and institutions
    that are built with Crown tax revenues.
[231]
But her uncertainty is revealed in this statement:

With respect to further principles guiding the definition of
    relevant revenues and expenses, I suggest that more or better evidence at Stage
    Three of this litigation may be of further assistance. The above general
    principles should be considered as a starting point only.
[232]


[284]

The
    trial judge encouraged the parties to come to an agreement on specific revenue
    and expense categories.
[233]

The same hedging for uncertainty is found in
paras.
    3(b) and (c) of the judgment quoted earlier.

[285]

Ontario
    argues that the hedging language appears to leave open the possibility that
    some tax revenues may be relevant, creating the potential for inconsistency.
    Ontario appears to fear a form of tracing as the basis for establishing
    relevant revenues and expenses and notes that the ruling failed to take into
    account uncontested evidence that by far the majority of provincial revenues
    and expenses flow through Ontarios consolidated revenue fund. Ontario expects
    that there likely will be no infrastructure and institutions that have been
    built
exclusively
with tax revenues (emphasis in
    the original), and argues that if applied categorically, this general
    principle may exclude expenses that should be included, at least in part.

[286]

The
    trial judges desire to give some guidance was well-intentioned, but, in our
    view, the counsel of caution should have prevailed. A prescriptive paragraph in
    a judgment should not be framed as only a first foray into a complex and
    difficult issue already scheduled to be heard. We would, as an exercise of
    prudence, excise the words, but not including personal, corporate or property
    tax revenues, from para. 3(b)(i) of the judgments, and the words, but do not
    include the costs of infrastructure and institutions that are built with Crown
    tax revenues from para. 3(b)(ii) of the judgments.

(4)

The Fair Share Formulation

[287]

Ontario argues that the
trial
judge erred in
    interpreting the Treaties as promising the payment of annuities corresponding
    to a fair share without defining fair share or articulating related
    principles. Ontario acknowledges that [a]ll parties to the Robinson Treaties
    likely intended the annuities agreed upon to be fair in context, but argues
    that the concept of fair share was not discussed or agreed upon in Treaty
    negotiations and that there is no basis to infer any common intention that the
    promise be for a fair share.

[288]

The judgments provide that the Treaties require the payment of
    annuities corresponding to a fair share of
the value of the resources,
    including the land and water in the territory
. We would
    deconstruct the judgments into two possible promises for analytical purposes.
    The first is that the augmentation clause was a promise to share in the value
    of the land. The second is that a fair share was promised.

[289]

The first form of promise  to share in the value of the land - is
    supported on the evidence and was woven through the
trial
judges interpretation of the augmentation clause. The same cannot
    be said for the second form of the promise  the elusive promise of fair share.
    We address each in turn.

(a)

The Promise to Share

[290]

At the most obvious level, the concept of sharing was built into the
    augmentation clause. Any future increase in the annuities will be funded out of
    net Crown revenues  revenues from the ceded lands in excess of costs. In that
    simple sense, the revenues would literally be shared.

[291]

But the concept of sharing is more fundamental. It was integral to the
    interpretation of the augmentation clause that the
trial
judge adopted, to quote it again for convenience:

A third interpretation, which includes the
    second interpretation, is that the Treaties
were a
    collective promise to share the revenues from the territory with the collective
; in other words, to increase the lump sum annuity so long as the
    economic condition was met.
[234]

[292]

The
trial
judge found that [a] plan to
    share the wealth on an if and when basis through an augmentation clause was
    always central to the understanding, the aspiration, and the intent of both the
    Anishinaabe and the Crown.
[235]

[293]

From the Anishinaabe perspective, the principles that the
trial
judge found fundamental to the Anishinaabes understanding of
    relationships,
[236]
particularly the principle of reciprocity, suggest that the Treaties would have
    been viewed as an agreement to share in the value of the territory. But the
    word value is notoriously vague, as a review of the evidence shows.

[294]

In her careful recounting of the evidence on this issue, the
trial
judge described the Anishinaabes established tradition of
    sharing their territory with others, provided that the use or occupation was
    authorized.
[237]
She described the ubiquitous practice of gift giving among the Anishinaabe,
    which was considered an act of moral imperative, rather than an economic
    necessity.
[238]
Within Anishinaabe society, hunters shared their bounty knowing that in turn,
    another hunter would reciprocate and share his when needed.
[239]
Gift giving occurred in
    accordance with the principle of reciprocity, which holds that items of value
    are given with the expectation that the gift will be returned.
[240]

[295]

The practice of gift giving became part of alliances between
    Euro-Canadians and the Anishinaabe:

Prospective allies demonstrated their ability
    to take care of each other through the mutual exchange of gifts. Reciprocal
    gift giving was representative of the alliance that included the possibility of
    shared spaces and resources, embodying the principle of mutual interdependence.
    An alliance included the mutual promise of responsibility for each other.
[241]

[296]

Sharing was inherent in the Anishinaabe practice of gift giving and
    in the principle of reciprocity. The
trial
judge found
    that, upon ceding their land to the Crown, [t]he Anishinaabe Chiefs and
    leaders had every reason to expect that their gift attracted a reciprocal
    gift, commensurate with the value of what they had provided.
[242]

[297]

The
trial
judge also grounded her finding
    that the augmentation clause promised some form of sharing in specific
    expressions by Anishinaabe leaders, such as the specific request for a share
    in a petition from Chief Shingwaukonse to Governor General Lord Cathcart, dated
    June 10, 1846. The
trial
judge found that this petition,
    in which Chief Shingwaukonse protested mining activities, proposes to share
    the benefits derived from the territory.
[243]
Chief Shingwaukonse wrote:

I see Men with large hammers coming to break open my treasures
    to make themselves rich &
I want to stay and watch
    them and get my share.
Great Father  The Indians elsewhere get annuity
    for lands sold if ours are not fit in most places for cultivation they contain
    what is perhaps more valuable & I should desire for sake of my people to
    derive benefit from them I should much wish to Great Father to see you &
    take your hand and ask you to tell me of these things, and also open to you my
    mind for tho I can write yet I could speak it better to you
I want always to live and plant at Garden River and as my
    people are poor to derive a share of what is found on my Lands.
[Emphasis added.]

[298]

The
trial
judge found that Chief
    Shingwaukonse eloquently argued for a share of the wealth for over four years
    and did not abandon this idea during treaty negotiations.
[244]
On another occasion, Chief
    Shingwaukonse expressed the desire for pay for every pound of mineral that has
    been taken off of our lands, as well as for that which may hereafter be carried
    away.
[245]
The
trial
judge also quoted Chief Peau de Chats words:
    A great deal of our mineral has been taken away. I must have something for it.
    I reflect upon it, as well as upon that which still remains.
[246]

[299]

These demands from the Anishinaabe for a share of the proceeds of
    [the mining] activity were a significant part of the context that the
trial
judge took into account in interpreting the augmentation
    clause.
[247]
She found that the concept of sharing could be traced from the Chiefs
    expressions and petitions to the recommendation in the Vidal-Anderson Report
    that provision be made, if necessary, for an increase of payment upon further
    discovery and development of any new sources of wealth.
[248]

[300]

The word value is used in different ways in the evidence and by
    the
trial
judge in her reasons.
The trial judge
    described Andersons visit in 1848. She stated: Chief Peau de Chat also sought
    information on the value of the mineral wealth. He stated that he wanted a fair
    evaluation of his lands worth and arrears for the loss of minerals.
[249]
This suggests a monetary conception of value. That conception is also invoked
    in the Vidal-Anderson Commissioners belief that the Lake Superior Anishinaabe
    had been led to form extravagant notions of the value of their lands.
[250]
Both this conception of value, and the fact that it was not familiar to the
    Anishinaabe, were also suggested by Chief Shingwaukonses comments to the
    Commissioners, regarding his lawyer: [W]e have appointed Macdonell to arrange
    our affairs I know nothing of the value of the land, - we thought of our
    ignorance and employed Macdonell.
[251]

[301]

It
    is clear that a monetary conception of value was being employed and that the
    value in question related to revenue produced from activities in the
    territory (both revenue from mining locations and proceeds from sale of lots).
[252]

[302]

T
he trial judge asked: What did the Commissioners Mean by
    Value of the Land? This question arose from the fact that no prior treaty
    linked compensation to value.
[253]
The trial judge pointed out that there was no market for any Indian land
    after the Royal Proclamation

of 1763; only the Crown could buy such
    land. The trial judge stated: Consequently, the Government controlled, or
    arbitrarily set, the entire market for Anishinaabe land sales. There was no
    way for Anishinaabe leaders to know the value of the land, if value was
    measured as a function of future revenue.
[254]


[303]

The trial judge
    stated:

The Commissioners repeated statements on this issue of
    ignorance of value leads to three possible inferences concerning the
    Commissioners assumptions: first, that value, however it was defined, was
    going to be an important factor to consider to reach a mutually acceptable
    agreement on annuity amount; second, that the Anishinaabe would be in a
    compromised position without knowledge of the value of the land or the wealth
    that the territory could produce; and third, that the Commissioners believed
    the Crown was in a superior position to predict the value of the land
    and that this superior position in negotiating imposed certain duties on the
    Crown.
[255]

[304]

The trial judge
    accepted that it was the monetary concept that the Anishinaabe sought to have
    included and that the Commissioners proposed inserting into the Treaties:

The Commissioners proposed a compensation model that took into
    consideration the actual value of the territory. In a recommendation that
    reverberates today, the Commissioners made a novel proposal for the new treaty
    to make terms in accordance with
present information
of its
    resources while adding a provision for an increase to the annuities upon
    further discovery and development of any new sources of wealth (emphasis
    added). This recommendation was based on the knowledge the Commissioners
    acquired during their extensive consultations with the Anishinaabe, as well as
    their understanding of the challenges facing the Colonial Government at the
    time.
[256]

[305]

She added: Since at
    least 1846, Chief Shingwaukonse spoke of tying the mineral wealth or monies
    collected in connection to the mining activity to compensation.
[257]

[306]

From this evidence, the
trial
judge
    concluded that the Treaties created a revenue sharing model:

For the Crown, the idea of sharing revenues was novel, but
    reflected their goal to obtain access to the land and resources, limit their
    liability, and deal honourably with the Anishinaabe.

A treaty that linked the future revenue of the territory to the
    annuities payable to the Anishinaabe answered the uncertainties and risks
    present. A revenue sharing model was consistent with the perspective that the
    Anishinaabe Chiefs held about their relationships with the newcomers and the
    land. It was also consistent with the Anishinaabes duties of responsibility as
    leaders toward their people. In addition, the sharing model invited renewal as
    circumstances changed. Most importantly, a sharing model was consistent with
    the principle of reciprocity.
[258]

[307]

This analysis and the
trial
judges finding
    that the Treaties created a revenue sharing model are well supported and were
    not effectively challenged by Ontario. The
trial
judge
    did not err in characterizing the Treaties in this way.

(b)

The Concept of Fair Share

[308]

We turn now to the second promise identified by the
trial
judge as part of her interpretation of the augmentation clause, the
    promise of a fair share. The judgments set out what the
trial
judge considered to be the consequences of her interpretation of the
    augmentation clause, which is constructed around the concept of a fair share.

[309]

To recapitulate, para. 1(a) of the operative language of the formal
    judgments provides that: 
the amount of annuity payable in any period
    [will] correspond to a
fair share
of such net
    revenues for that period (emphasis added).
Paragraph 1(d) of
    the judgments add that
the Treaty purpose is to reflect in the annuities
    a
fair share
of the value of the resources,
    including the land and water in the territory (emphasis added). Paragraph 1(e)
    addresses the graciousness clause and obliges the Crown to consult with the Treaty
    parties to determine what portion, if any, of the increased annuity amount is
    to be distributed by the Crown to the individual Treaty rights holders in addition
    to the $4 per person per year they are already being paid.
Finally,
    p
ara. 3(c) leaves things somewhat more open: the principles to be
    applied for purposes of determining amounts that are fairly and reasonably
    equal to a
fair share
of net Crown resource-based
    revenues are subject to further direction by the Court in the future stage of
    this proceeding (emphasis added).

[310]

In
    terms of the trial judges reasons for decision, the expression fair share
first emerged in her summary of the position of the Huron Plaintiffs,
    who argued for renewing the treaty relationship and moving to a fair sharing
    agreement of the land and its resources.
[259]
The
trial
judge next referred to the fair share of the
    net revenues as an implementation issue in dispute.
[260]
In argument, both the
    Huron Plaintiffs and the Superior Plaintiffs suggested that a fair share would
    be 100 percent of net Crown revenues.
[261]
The trial judge rejected this proposition stating, [s]haring, by definition,
    does not include taking 100% of the net benefits from the Crown.
[262]

She addressed and rejected the Huron Plaintiffs and Superior
    Plaintiffs claims to all of the revenues.
[263]
Finally, the
trial
judge
noted that it was not
    yet possible to specify what a fair share would be:

It is not possible to articulate the
    principles for a fair share in a vacuum. There was very little evidence before
    the court on post-Treaty economic activity in the territories. In a later stage
    of these proceedings it will be up to the parties to demonstrate what division of
    revenues is supportable on the evidence.
[264]


(c)

Ontarios Position

[311]

As noted, Ontario argues that the
trial
judge
    erred in interpreting the Treaties as promising the payment of annuities
    corresponding to a fair share without defining fair share or articulating
    related principles.

(d)

Analysis

[312]

We agree with Ontario
    that the trial judges interpretation of the Treaties fell short on the fair
    share issue. As we will explain, the trial judges interpretation of the
    Treaties as giving the Anishinaabe a fair share of the value of the territory
    went beyond a generous construction of the Treaties.

(i)

The Fair Share Error

[313]

The
    expression fair share is not an actual interpretation of the augmentation
    clause. The promise to share the revenues from the territory gains nothing
    substantive from the addition of the words, fair share. The concept of a
    fair share is neither drawn from the evidence nor is it especially useful in
    understanding the Crowns obligations under the Treaties. The expression is a
    rhetorical gloss that adds nothing substantive but has the potential to work
    mischief.

[314]

The
trial
judges interpretation of the
    Treaty promises has two elements. The first is that the Treaties were a
    collective promise to share the revenues from the territory with the collective;
    in other words, to increase the lump sum annuity so long as the economic
    condition was met.
[265]
The second relates to
the graciousness clause and obliges
    the Crown to consult with the Treaty parties to determine how much of any
    increase was to be paid directly to the individual Treaty rights holders.
[266]


[315]

We recognize that at one level, no one can quarrel with the idea of
    a fair share. We instill the virtue of sharing in our children. As the
trial
judge noted, sharing is what the Treaties are built on. No
    reasonable person would oppose an arrangement that was fair. Ontario
    acknowledges that [a]ll parties to the Robinson Treaties likely intended the
    annuities agreed upon to be fair in context. So, on this reading, fair
    share seems quite innocent. But that would downplay the effectiveness of a
    rhetorical figure of speech. It was introduced by the Huron and Superior
    Plaintiffs counsel for that reason.
[267]

[316]

The
trial
judges judgment that the Treaties
    promise a fair share of net Crown revenues is not supported by evidence. This
    phrase does not appear in any of the historical records. It seems to have
    originated with counsel. The Huron Plaintiffs, in their Amended Statement of
    Claim, seek [j]udgment  that the Crown is to forthwith provide payment of a
    fair share of the net profit, said share to be the subject of a negotiated
    agreement between the Crown and the Plaintiffs.
[268]
They state:

The Robinson Huron Treaty Territory has been
    considerably taken-up since the signing of the Treaty in 1850. The Robinson
    Huron Treaty Anishinabek were not meaningfully consulted by the Crown with
    regard to the taking-up of those lands.
Nor were
    they accommodated, as provided in the Treaty, by way of being paid a fair share
    of resource revenues as promised by Robinson in 1850.
[269]

[317]

The expression fair share was repeated many times by counsel for
    both the Huron and Superior Plaintiffs, in oral and written submissions. The
    fair share concept was advanced as part of Robinsons understanding of the
    augmentation clause (Mr. Robinson himself must have believed that the augmentation
    clause was capable of providing the Anishinaabe with a fair share of the
    proceeds of the land);
[270]
as the desire of Chief Shingwaukonse (He wants his fair share)
[271]
and other Anishinaabe
    leaders ([W]e have the Fort William Chief and principal man concerned that
    they want their fair share);
[272]
as the core purpose of the augmentation clause ([W]e say that that is an
    approach thats entirely consistent with the purpose of the augmentation
    clause, which is to provide the Anishinaabe with a fair share of the
    revenues);
[273]
and  in its absence  as the basis of later complaints (Theyre complaining
    theyre not getting their fair share).
[274]

[318]

At one point, the
trial
judge asked counsel
    about the origin of the phrase, fair share. At first, counsel agreed that
    this phrase originated in the Vidal-Anderson report. Counsel then corrected
    himself and said, instead, that it came from Chief Shingwaukonses 1846
    petition, stating, He says, I want my fair share.
[275]
But this too was an error by
    counsel. There is no evidence on the record that Chief Shingwaukonse ever used
    the phrase fair share. He said that he wanted to get my share, and that he
    desired as my people are poor to derive a share of what is found on my Lands.
[276]

(ii)

The Impact of Adopting Fair Share

[319]

Introducing the concept of fair share into the judgments is not
    without consequences. It might seem obvious that the share owed to the
    Anishinaabe ought to be a fair one. However, as can be seen from the
trial
judges attempt to determine what constitutes a fair share,
    the concept tends to focus the mind on the amount or percentage of revenue that
    ought to be redirected to the Treaty First Nations, rather than on the state of
    affairs that this promise to share sought to, and ought to, achieve. The
    Anishinaabe were not focused on subsistence in the Treaty negotiations but on
    sharing the wealth.
[277]

They sought the ability to live as they had so long as possible but also
    sought to benefit from the rise in living standards that would accompany
    development, especially if that development impaired their traditional way of
    life. They were not aiming at mere subsistence.

(iii)

What Kind of Sharing is Required by the Treaty
    Promise?

[320]

The
trial
judges task in Stage Three is to
    determine what kind of sharing the augmentation clause requires and what
    increase is necessary in the annuities to fulfil the Treaty promise.

[321]

In describing the Anishinaabe principle of responsibility, the
trial
judge stated:

The Anishinaabe Chiefs and leaders came to the
    Treaty Council with a responsibility to ensure that their people could enjoy
    continued dependence on the land for their sustenance, their medicines, and
    their spiritual well-being, and, equally, that they could continue to be
    responsible for that land.
[278]

[322]

Based on the
trial
judges reasoning, the
    common intention of the parties was to share in such a way that would provide
    for both communities. This would suggest that the share promised is to be
    determined not only based on the extent of Crown revenues but also with
    reference to the relative wealth and needs of the different communities.
    Obviously, the Anishinaabe would not have expected their communities to suffer
    a range of deprivations, including substandard housing and boil water advisories,
    while non-Indigenous communities thrived. Nor was it likely, based on the
    Anishinaabe principles discussed by the
trial
judge,
    that the Anishinaabe would have wished to enjoy great personal wealth while
    their fellow Canadians suffered deprivation.

[323]

The
trial
judge noted:

[T]he court and the parties must return to the
    shared goals, expectations, and understandings of the parties in 1850 and,
    based on those shared goals, expectations, and understandings, devise processes
    and procedures for the implementation of the Treaties promise in the modern
    era.
[279]

The parties in negotiations, or the
trial
judge in Stage Three, must determine the form, level, and aim
    of the sharing that the augmentation clause requires. The parties and the court
    should be led, in doing so, by the Treaty parties shared goals, expectations,
    and understandings in 1850, including the Anishinaabe principles of respect,
    responsibility, reciprocity, and renewal, identified by the
trial
judge, and the Crowns commitment to being both liberal and just.

[324]

The remaining task of interpretation, and the basis of
    implementation, lies in determining what the sharing relationship envisioned by
    the Anishinaabe and the Crown in 1850 would look like today and how that
    relationship can be brought about. This is the task of reconciliation.

[325]

The
    trial judge observed that questions regarding implementation remain subject to
    dispute.
[280]

The precise form of sharing required by the Robinson Treaties
    remains to be determined. Because of
our concerns about the possible misuse
    of the concept of fair share as a figure of speech, we would amend the formal
    judgment to delete it, as set out in Appendix A.

(5)

Observations on Stage Three

[326]

We make two
    observations. First, the staging of this case has introduced some uncertainties
    into the process. There is a functional trifurcation but the stages have become
    somewhat confused. Broadly conceived, Stage One was dedicated to the
    interpretation of the Treaties, the identification of the Treaty promises, and
    the determination of the duties of the Crown, while Stage Two related to the Crowns
    defences, and Stage Three to the Huron and Superior Plaintiffs remedies.
    However, as matters progressed, some elements of interpretation seem to have
    been reserved for Stage Three. The trial judge also seems to have reserved a
    decision on whether the Crown breached the Treaties for Stage Three.
[281]
In some ways, Stage Three has become a basket for unresolved issues carried
    forward from Stages One and Two.

[327]

The second observation
    is that the implementation of the Treaty promises in Stage Three presents
    unusual complexities that will be difficult to manage. It would be far better
    for the parties to negotiate, rather than litigate, the remaining issues.

[328]

Negotiations also
    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.
[282]
Although written about a modern treaty, these words would apply equally to a
    negotiated agreement on how the promises in the Robinson Treaties are to be
    implemented.

[329]

The careful language
    of modern treaties, having been negotiated by competent, sophisticated and
    adequately resourced parties, has the advantage of creating precision,
    continuity, transparency and predictability,
[283]
and is due judicial deference.
[284]
In our view, this would also be true of negotiated agreements for the
    implementation of historical treaties.

[330]

Neither the trial judge
    nor this court has any information as to whether and to what extent the parties
    have engaged in negotiations.
[285]
But there appear to have been three barriers to successful negotiations. The
    first is the position taken by Ontario and Canada before the trial judge that
    the Crown has unfettered discretion as to whether, when, how, and in what
    amount the annuities might be increased. This courts decision clarifies the
    Crowns obligations. There is something to negotiate about.

[331]

The second barrier to
    negotiation was the trial judges insertion of the concept of fair share into
    the interpretation of the augmentation clause, which we addressed earlier. This
    courts decision eliminates this barrier.

[332]

The final barrier is
    the ongoing struggle between Ontario and Canada over which government will pay
    the annuities and, if both are obliged to contribute, in what proportion. The
    panel requested that the parties consider having the trial judge hear and
    determine the allocation issues on an expedited basis, before the Stage Three
    hearing. Ontario and Canada were opposed to doing so. In the absence of their
    consent, this court has no jurisdiction under the
Rules of Civil Procedure
to require that the allocation issue be dealt with separately and in priority.
[286]


[333]

We urge both Crown
    parties to reconsider their stance on expediting the allocation issue in order
    to facilitate the negotiation of an agreement on the implementation of the
    Robinson Treaties. In our view, the best way to accomplish the task of
    reconciliation is through negotiation. Compared to continued litigation, with
    its attendant close judicial management, a modern agreement on the
    implementation of the Robinson Treaties, negotiated by the Treaty parties, is
    more likely to produce a strong, renewed Treaty relationship.
[287]
True reconciliation will not be achieved in the courtroom.
[288]

F.

Issue Five: Did the Trial Judge Err in Her Costs Award for the Stage One
    Proceedings?

[334]

Ontario also appeals
    from the costs awards in favour of the Superior and Huron Plaintiffs for the Stage
    One proceedings. The trial judge awarded costs and disbursements to the
    Superior Plaintiffs of $5,148,894.45 and $9,412,447.50 to the Huron Plaintiffs,
    with Ontario and Canada each to pay one half of those amounts.

[335]

Canada does not appeal
    from the costs awards.

[336]

Ontario argues that
    the trial judge erred in awarding 85 percent of actual legal fees after
    concluding that partial indemnity costs were appropriate. Ontario submits that
    partial indemnity costs cannot exceed 67 percent of fees paid. It submits that
    the trial judge erred in principle by giving no weight or insufficient weight
    to Ontarios reasonable expectations in awarding disproportionately high costs
    to the Superior and Huron Plaintiffs, and argues that she erred by failing to
    scrutinize the costs they claimed in a substantive and meaningful way.

[337]

For the Superior
    Plaintiffs, Ontario asks that the costs be fixed at the rate of 67 percent of
    the fees found by the trial judge to be recoverable, that the manner in which
    the trial judge dealt with costs awarded for an earlier motion be varied, and
    that these plaintiffs recover their disbursements as awarded by the trial
    judge. The Superior Plaintiffs claimed $5,151,448.21 in fees. The difference
    between an award of 85 and 67 percent of claimed fees is $927,267.88, of which
    $463,630.34 would be paid by Ontario. Inclusive of disbursements, Ontario says
    the total award ought to be $4,166,381.06.

[338]

For the Huron
    Plaintiffs, Ontario submits that the hours claimed are excessive, asks that
    they be reduced by 50 percent, and requests that costs be fixed at 67 percent
    of that amount plus the disbursements allowed by the trial judge. The Huron
    Plaintiffs claimed $8,383,930.00 in fees. The difference between an award of 85
    percent of claimed fees and 67 percent of the proposed reduced-hours fees is
    $4,317,723.95, of which $2,158,861.98 would be paid by Ontario. Inclusive of
    disbursements, Ontario says the total award ought to be $5,094,724.55.

(1)

The Trial Decision on Costs

[339]

The trial judge found
    that the Huron Plaintiffs and the Superior Plaintiffs were entitled to costs on
    a partial indemnity basis fixed at 85 percent of their fees and 100 percent of
    their disbursements.
[289]

[340]

Before the trial
    judge, Ontario and Canada agreed that it was appropriate to award the Huron
    Plaintiffs and the Superior Plaintiffs their costs for Stage One and the
    summary trial, including pleadings and case management. Ontario and Canada also
    agreed that they each should be liable for half of the costs award. They
    disagreed, however, with the Huron Plaintiffs and the Superior Plaintiffs on
    the quantum of costs, in addition to other issues that are not pursued on
    appeal.

[341]

The trial judge first
    found that the Huron Plaintiffs and the Superior Plaintiffs were entitled to
    costs at a higher-than-typical rate of 85 percent based on the factors set out
    in r. 57.01 of the
Rules of Civil Procedure
, including:

1.

Amount Claimed
 The amount claimed in the litigation is
    substantial;
[290]

2.

Complexity of the Proceedings
 The litigation is on the high end
    of complexity (i.e., the interpretation of two historic Treaties will re-shape
    the Crown-Indigenous relationship for a vast area of northern Ontario), the
    procedural history of the litigation is complex and evolving, and certain legal
    and strategic decisions by Ontario and Canada prolonged or complicated the
    proceedings;
[291]

3.

Importance of the Issues
 The issues raised in the case are of
    central importance to the entire Anishinabek Nation and central to the broad
    national public interest in reconciliation with Indigenous peoples of the upper
    Great Lakes Territories;
[292]

4.

Principle of Indemnity
 All parties retained teams of highly
    specialized and experienced counsel and should be fairly compensated for the
    increased costs associated with specialized and experienced counsel;
[293]
and

5.

Context of Indigenous Legal Issues
 The fiduciary relationship
    forms an important consideration for the award of costs in this matter and, in
    these circumstances, the small, remote and historically economically
    marginalized First Nations plaintiffs should not have to assume 40 percent of
    the costs in this litigation.
[294]


(2)

Analysis

[342]

Stage One of these
    proceedings was of the utmost importance to the Treaty partners. The trial of
    this part continued over 78 days. The parties filed twenty expert reports and
    nineteen witnesses gave oral evidence. The trial time was the tip of the
    iceberg in comparison to the years of preparation.

[343]

Leave to appeal costs
    is not granted lightly. As this court observed in
Barresi
:

The test for leave to appeal costs is high: there must be
    strong grounds upon which the appellate court could find that the judge erred
    in exercising his [or her] discretion:
McNaughton Automotive Limited
    v. Co-Operators General Insurance Company
(2008), 95 O.R. (3d) 365 (C.A.),
    at para. 24, citing
Brad-Jay Investments Ltd. v. Szijjarto
, 218 O.A.C.
    315 (2006) (C.A.), at para. 21. A costs award should be set aside on appeal
    only if the trial judge has made an error in principle or if the costs award is
    plainly wrong:
Hamilton v. Open Window Bakery Ltd
.
, 2004
    SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[295]

[344]

Costs awards are
    quintessentially discretionary.
[296]
They are accorded a very high degree of deference.
[297]

[345]

In
Frazer
,
    this court observed:

A trial judge has extremely broad discretion in the awarding of
    costs, which is entitled to a very high degree of deference and [is] not to be
    taken lightly by reviewing courts. A reviewing court can only review a trial
    judges award of costs where he or she has considered irrelevant factors,
    failed to consider relevant factors or reached an unreasonable conclusion. And
    finally, a reviewing court will not interfere with a trial judges disposition
    on costs on the grounds that the members of the appellate court would have
    exercised their discretion differently:
Canadian Pacific Ltd. v. Matsqui
    Indian Band
, [1995] 1 S.C.R. 3 at para. 39.
[298]

[346]

As this court noted in
Bondy-Rafael
:

[P]artial indemnity fees are not defined in terms of an exact
    percentage of full indemnity fees under the
Rules of Civil Procedure
.
    While representing a portion of full indemnity costs, that portion has never
    been defined with mathematical precision but generally amounts to a figure in
    the range of more than 50 percent but less than 100 percent. This is as it
    should be given the myriad factors that the court must consider in the exercise
    of its discretion in fixing costs.
[299]

[347]

Similarly, this court
    has repeatedly noted that the extent of the reduction associated with partial
    indemnity costs is a matter within the trial judges discretion.
[300]
As observed in
Wasserman, Arsenault Ltd.
:

The degree of indemnification intended by an award of partial
    indemnity has never been precisely defined. Indeed, a mechanical application of
    the same percentage discount in every case where costs are awarded on a partial
    indemnity scale would not be appropriate. In fixing costs, courts must exercise
    their discretion, with due consideration of the factors set out in rule
    57.01(1), in order to achieve a just result in each case.
[301]

[348]

The trial judge did
    not err in principle by taking into account the burden it would place on the
    Huron and Superior Plaintiffs were they to recover only two thirds of their
    legal fees. This is in the context of admitted neglect by the Crown of its
    Treaty promises for many decades, and the extreme difficulty of bringing
    proceedings like these for recognition of Treaty rights by people who have been
    marginalized by that neglect.

[349]

In
Okanagan Indian
    Band
, the Supreme Court noted with approval the Court of Appeal for British
    Columbias reasoning that constitutional principles and the unique nature of
    the relationship between the Crown and aboriginal peoples were background
    factors that should inform the exercise of the courts discretion to order
    costs.
[302]

[350]

Nor can it be said
    that the trial judge erred in the manner in which she treated the costs paid by
    Canada on an earlier motion, for which Ontario now seeks some credit. Ontarios
    materials do not permit this court to independently calculate what amount any
    credit should be. If Ontarios submissions are correct, the Superior Plaintiffs
    say that Ontario would be entitled to a further credit of $31,845.40. However,
    this court is unable to conclude that there was an error in principle or that
    the trial judge was clearly wrong in the manner in which she dealt with the
    costs paid by Canada. She did deduct the former costs paid from the costs
    awarded.

[351]

Leave to appeal from
    the costs award in favour of the Superior Plaintiffs is refused.

[352]

Ontario argued at
    trial that the hours claimed by the Huron Plaintiffs were excessive. Ontarios
    cost outline noted 11,956 hours of legal work for both actions.
[303]
The Superior Plaintiffs started their action in 2001 and proceeded through
    discovery. Their costs summary claimed 7,644 hours of legal work. The Huron
    Plaintiffs started their action in 2014, relied in part on the discovery in the
    other action, and yet claimed for 28,211 hours of legal work which the trial
    judge allowed in full.

[353]

The trial judge dealt
    with the controversy regarding the hours spent briefly:

Canada accepts the reported hours, hourly rates and
    disbursements as reasonable, subject to an assurance that the fees and
    disbursements claimed for Stage One do not include any time or expenses either
    already advanced. This assurance was provided.

Ontario challenges the number of hours, size of the team and
    travel disbursements of the Huron claim based upon comparison to their own
    hours and costs. I am satisfied the Huron claim survives these challenges.
[304]

[354]

Given the position on
    appeal, the hourly rates and the travel disbursements are no longer in issue,
    but Ontario says the hours claimed and the size of the Huron Plaintiffs legal
    team  including 22 lawyers  was excessive.

[355]

The trial judge did
    not address the substantial difference between the hours claimed as between the
    Huron and the Superior Plaintiffs. The material before her did not permit her
    to come to a conclusion as to the amount of time reasonably required by the
    Huron Plaintiffs to deal with all aspects of the action. Was there
    over-lawyering or unnecessary duplication of legal work? There may be logical
    explanations for the substantially greater amount of legal time claimed or
    there may not. For example, the Huron Plaintiffs claimed more than 6,000 hours
    of law clerk, paralegal and student work. In contrast, Ontarios archival
    research was performed by an independent contractor, Public History, whose time
    was reflected in a disbursement rather than billable hours. It may also be that
    the Superior Plaintiffs were able to rely on some of the work done by the Huron
    Plaintiffs.

[356]

After coming to a
    conclusion as to the time reasonably spent on this matter the trial judge would
    then be required to step back and consider the result produced and question whether,
    in all the circumstances, the result is fair and reasonable.
[305]

[357]

As noted in
Murano
,
    this overall sense of what is reasonable cannot be a properly informed one
    before the parts are critically examined.
[306]

[358]

Leave to appeal from
    the costs award in favour of the Huron Plaintiffs is granted. The disbursements
    allowed by the trial judge are upheld. The fees allowed are set aside and
    remitted to the trial judge for reconsideration in light of these reasons. This
    assessment will have to proceed with caution, given that these proceedings are
    continuing, and privileged matters must be protected from disclosure.

[359]

It will be up to the
    trial judge to devise a procedure to deal with the manner in which evidence as
    to the reasonableness of the time spent is presented to her.

G.

Disposition

[360]

For these reasons, as
    summarized in the seven propositions set out above,
[307]
we would grant the Stage One appeals in part, direct that the Stage One
    judgments be amended as set out in Appendix A to these reasons, and remit the
    matter of the Huron Plaintiffs costs for the Stage One proceedings to the
    trial judge for reconsideration in accordance with these reasons. We would dismiss
    the Stage Two appeal. We would award costs of the appeals in the manner set out
    in the joint reasons.

P.
    Lauwers J.A.

G.
    Pardu J.A.


Strathy C.J.O. and Brown J.A.:

A.

Introduction

[361]

We concur with the
    reasons of Lauwers and Pardu JJ.A. on the issues of costs and indexing. We also
    agree with the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown
    immunity and limitation defences.

[362]

We issue these reasons
    to explain: (1) why the standard of review set out in
Marshall
applies
    when reviewing the trial judges interpretation of the Robinson Treaties;
[308]
(2) why, applying that standard, we conclude the trial judge committed
    reversible error in her interpretation of the Robinson Treaties; (3) how the
    honour of the Crown informs the Crowns obligation to implement the Treaties;
    and (4) the appropriate remedy is in this case.

[363]

To set the stage for
    our analysis, we begin by reviewing the trial judges interpretation of the
    Treaties, the principles governing treaty interpretation, and the standard of
    appellate review in treaty interpretation cases. We then explain how the trial
    judge erred in her interpretation of the Treaties, including by failing to
    consider both the plain meaning of the Treaties texts and the only
    interpretation of the Treaties that reconciled the parties intention in a
    manner consistent with the historical record. We then explain why,
    notwithstanding these errors, we agree with the trial judge and the majority of
    this court that, after 150 years of inaction, the Crown can be compelled to
    exercise its discretion about whether to increase the annuities to address an
    injustice that brings dishonour to the Crown. Finally, we outline the judgment
    we would grant in light of our conclusions.

B.

The Trial Judges Interpretation of the Treaties

[364]

At paras. 70-80 of
    this courts joint reasons, we summarized the trial judges interpretation of
    the Treaties. Briefly stated, the trial judge interpreted the Treaties as
    imposing a mandatory and reviewable obligation on the Crown to increase the
    Treaties annuities when the economic circumstances warrant.
[309]
She held that the principle of the honour of the Crown and the doctrine of
    fiduciary duty imposed on the Crown the obligation to diligently implement the
    Treaties promise to reflect the value of the territories in the annuities.
[310]
The courts
    formal judgments provided that the Crown is required to increase the annuities
    without limit, so as to achieve the Treaty purpose of reflecting in the
    annuities a
fair share
of the resources, including the land and water,
    in the territory.
[311]

[365]

The majority of our
    colleagues conclude that the trial judges interpretation of the Treaties was
    reasonable and free from legal error, though they do conclude she erred in her
    approach to remedies. As we do not share that same opinion on the treaty
    interpretation issue, we will review the trial judges reasons in more detail
    in order to explain our disagreement.

[366]

Prior to engaging in
    the interpretative exercise, the trial judge described the context of
    Anishinaabe political and social life, both before and after their contact with
    Europeans.
[312]
She identified some of the important milestones on the road to the Robinson
    Treaties, from the
Royal Proclamation of 1763
(the Royal
    Proclamation) and the Council at Niagara in 1764 to the Vidal-Anderson
    Commission and the Mica Bay Incident in 1849.
[313]
She also described the events leading up to the Treaty Council in September
    1850 and the activities and negotiations at the Council itself.
[314]
Referring to
Marshall
, she noted that this history was necessary for
    the interpretation of the Robinson Treaties in their full historical, cultural,
    linguistic, and political context.
[315]
In so doing, the trial judge appropriately set the stage for the consideration
    of the Treaties in the context of the broader historical relationship between
    the Crown and First Nations in Canada and the specific relationship between the
    Crown and the Anishinaabe of the upper Great Lakes.

[367]

The trial judge also
    examined the post-Treaty record, which Ontario argued was instructive
    concerning the parties understanding of the Treaties promise.
[316]
She ultimately found that the record was vague, inconsistent, and conflicting
    and of limited assistance to the exercise of searching for the parties common
    intention.
[317]

[368]

The trial judge then
    turned to the principles of treaty interpretation, which she summarized from
Marshall
.
[318]
These are set out below and are not in dispute. She described what she called a
    two-step approach to treaty interpretation proposed by McLachlin J. (as she
    then was) in
Marshall
.
[319]
McLachlin J. identified the first step as examining the words of the treaty
    text and not[ing] any patent ambiguities and misunderstandings arising from
    linguistic and cultural differences.
[320]
This would lead to one or more possible interpretations and will identify the
    framework for a historical contextual inquiry to enable the court to ascertain
    a final interpretation.
[321]

[369]

The trial judge
    described the second step of the
Marshall
approach as a consideration
    of the possible meanings of the text against the treatys historical and
    cultural context. These various meanings may arise from the text or the
    contextual analysis.
[322]
She pointed out that contextual evidence assists the court in ascertaining the
    full extent of the agreement of the parties.
[323]

[370]

Finally, the judge
    identified what she called the third step: examining the historical context
    to determine which interpretation comes closest to reflecting the parties
    common intention.
[324]
Citing
Marshall
, she described this as choosing from among the
    various possible interpretations of the common intention the one which best
    reconciles the parties interests.
[325]

[371]

The trial judge found
    that the purpose of the augmentation clause was to bridge the gap between the
    expectations of the parties by promising future annuities that would reflect
    the value of the territory.
[326]

[372]

She noted that the
    parties did not agree about two features of the augmentation clause.
[327]
The first and primary dispute, she said, was whether the augmentation clause
    included a mandatory promise to increase the annuity payments above £1 ($4) per
    person, in step with the revenues received from the Treaty territories, or
    whether that decision was discretionary.
[328]
The second point of contention was whether, as the Huron and Superior
    Plaintiffs alleged, the perpetual annuity of £500 or £600 to be paid to the
    Chiefs and their Tribes was a collective amount, from which a distributive
    amount, limited to a maximum of £1 per person, was to be paid to individuals.
[329]

[373]

After setting out the
    positions of the parties on these and other issues, the trial judge turned to
    the interpretation of the augmentation clause.
[330]
She described this exercise as finding the common intention that best
    reconciled the parties interests.
[331]

[374]

She set out her
    conclusion at the outset of her analysis, namely that the parties did not
    intend to cap the annuity and that the reference to £1 in the augmentation
    clause was a limit only on the annuity amount that may be distributed to
    individuals, and this distributive amount is a portion of the collective lump
    sum annuity payable to the Chiefs and their Tribes.
[332]

[375]

The trial judge began
    her analysis with step one of the
Marshall
framework, which she
    described as determining the [p]resence of [a]ny [p]atent [a]mbiguities or
    [m]isunderstandings.
[333]
She found that the first and most confounding ambiguity is whether the parties
    intended that the promise of a perpetual annuity would be a collective, as
    opposed to an individual, entitlement.
[334]
This, she said, was key to understanding the parties intentions with respect
    to the existence of a cap.
[335]
She noted that there was no reference to a per capita payment in the
    consideration clause, which stated:

[T]hat for and in consideration of the sum of two thousand
    pounds of good and lawful money of Upper Canada to them in hand paid; and for
    the perpetual annuity of five hundred pounds, the same to be paid and delivered
    to the said Chiefs and their Tribes.
[336]

[376]

She observed that
    there was a provision in the augmentation clause to increase the annuity, which
    was triggered if a condition was met:

[I]n case the territory hereby ceded by the parties  shall at
    any future period produce an amount which will enable the Government of this
    Province, without incurring loss, to increase the annuity hereby secured to
    them, then and in that case the same shall be augmented from time to time....
[337]

[377]

She also concluded
    that the sub-clause that followed set out a further condition on the
    increase:

[P]rovided 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....
[338]

[378]

The trial judge stated
    that from her reading of this clause, the text caused a real risk of
    misunderstanding or different understandings: namely, whether the entire lump
    sum annuity was to be capped by an amount paid to each individual, or whether
    it was to be increased without limit, while any individual distributions from
    the lump sum would be subject to a cap.
[339]
The Huron Plaintiffs and the Superior Plaintiffs argued that the cap was
    either inapplicable or applied only to individual distributions, whereas Canada
    and Ontario argued that the £1 ($4) was a cap or limit on the obligation to
    increase the collective annuity and that any increases beyond that level were
    discretionary, in Her Majestys graciousness.
[340]

[379]

After reviewing the
    historical and cultural context, including the different perspectives of the
    Treaty partners, the historical record and the records of the Treaty Council,
    the challenges of interpretation, transcription and drafting of the treaty
    documents, the post-Treaty record and the principle of the honour of the Crown,
    the trial judge returned to the interpretation of the augmentation clause and
    the common intention that best reconciled the intentions of the parties.
[341]

[380]

She found that [o]n
    the words of the text alone, there were three possible interpretations of the
    augmentation clause:

1.

the Crowns promise was capped at $4 per person, and once the annuity
    was increased to that amount, the Crown had no further liability;

2.

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; or

3.

the Treaties were a collective promise to share the revenue from the
    territory with the collective  to increase the lump sum annuity so long as the
    economic condition was met, and the reference to £1 ($4) was a limit only on
    the amount that could be distributed to individuals.
[342]

[381]

The trial judge found
    that, having regard to treaty interpretation principles, the honour of the
    Crown and the context in which the Treaties were made, only the third
    interpretation comes close to reflecting the parties common intention.
[343]

[382]

She found that the
    parties did not intend to cap increases to the annuities at $4 per person and
    that:

The best possible interpretation of the parties common
    intention, the one that best reconciles their interests, is that the Crown
    promised to increase the collective annuities,
without limit
, in
    circumstances where the territory produces an amount as would enable the
    Government to do so without incurring loss.
[344]

[383]

The common intention,
    the trial judge said, was that the reference to £1 in the augmentation clause was
    a limit only on the amount that may be distributed to individuals, and this
    distributive amount is a portion of the collective lump sum annuity payable to
    the Chiefs and their Tribes.
[345]
She found that the first interpretation, which put a £1 per person cap on the
    annuities, does not reflect either the common intention nor reconcile the
    parties interests; it suggests that the Treaties were a one-time transaction.
    As the historical and cultural context demonstrates, this was not the case; the
    parties were and continue to be in an ongoing relationship.
[346]

[384]

The trial judge found
    that the third interpretation satisfied the goals of the parties, by sharing
    the wealth on an if and when basis.
[347]
This reflected the Anishinaabe tradition of sharing with others.
[348]
While the sharing of revenues was novel for the Crown, it permitted access to
    the land and resources, limited Crown liability, and reflected their goal to
    deal honourably with the Anishinaabe.
[349]

[385]

The trial judge
    identified a fourth interpretation proposed by the Huron and Superior
    Plaintiffs, which she said the parties did not fully develop.
[350]
The fourth interpretation characterized the £1 amount as a placeholder for a
    temporary or permanent cap on the collective entitlement; it was not the true
    extent of the consideration the parties agreed on.
[351]
The trial judge did not
    explore that interpretation any further.

[386]

As we will explain, we
    conclude that the trial judges interpretation of the Treaties was the product
    of extricable errors of law in the application of the principles of treaty
    interpretation. We find that the fourth interpretation, which the trial judge
    did not explore in any meaningful way, provides the only reasonable
    interpretation consistent with the common intention of both parties. While that
    interpretation contemplates an ongoing relationship between the Crown and the
    Anishinaabe, and a potential sharing of the wealth of the Treaty lands, it did
    not provide for a mandatory and
unlimited
fair share as expressed in
    the courts judgments. Instead, the sharing was intended to take place through
    the exercise of Her Majestys graciousness.

[387]

Before turning to the
    interpretation of the Treaties, we will briefly summarize the core principles
    of treaty interpretation.

C.

Principles of Treaty Interpretation

[388]

The principles
    applicable to treaty interpretation are not in dispute. Those principles were
    expressed in
Marshall
and were summarized by the trial judge as
    follows:


1.

Aboriginal treaties constitute a unique type of agreement and attract
      special principles of interpretation;

2.

treaties should be liberally construed and ambiguities or doubtful expressions
      should be resolved in favour of the Aboriginal signatories;

3.

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;

4.

in searching for the common intention of the parties, the integrity and
      honour of the Crown is presumed;

5.

in determining the signatories respective understanding and intentions,
      the court must be sensitive to the unique cultural and linguistic differences
      between the parties;

6.

the words of the treaty must be given the sense which they would
      naturally have held for the parties at the time;

7.

a technical or contractual interpretation of treaty wording should be
      avoided;

8.

while construing the language generously, the court cannot alter the
      terms of the treaty by exceeding what is possible on the language or
      realistic; and

9.

treaty rights of Aboriginal peoples must not be interpreted in a static
      or rigid way. They are not frozen at the date of signature. The interpreting
      court must update treaty rights to provide for their modern exercise. This
      involves determining what modern practices are reasonably incidental to the
      core treaty right in the modern context.
[352]


D.

Standard of Review

(1)

Position of the Parties

[389]

The parties disagree
    about the standard of review applicable to the trial judges interpretation of
    the Treaties.

[390]

Ontario submits that
    the interpretation of treaties ultimately is a legal issue, reviewable on a
    standard of correctness, even when informed by findings of fact that will be
    reviewable on a deferential standard.

[391]

The Huron and Superior
    Plaintiffs and two of the interveners, Assembly of First Nations and Biigtigong
    Nishnaabeg First Nation, argue that treaty interpretation involves a question
    of mixed fact and law, analogous to the process of contract interpretation that
    attracts the deferential standard of review adopted in
Sattva
.
[353]


[392]

Canada takes no
    position on the issue.

(2)

Analysis

(a)

The
Marshall
Standard of Review

[393]

The Supreme Courts
    decision in
Marshall
remains the seminal case on the applicable
    standard of review for treaty interpretation.

[394]

Marshall
s
    standard of review analysis drew on the courts earlier decision in
Van der
    Peet
, where the issue was whether the claimant enjoyed an Aboriginal right
    to exchange fish for money or for other goods.
[354]
Just as the two-step common intention process for interpreting a treaty
    provision involves considerable fact-finding about the historical and cultural
    context in which the treaty was made, so too the integral to a distinctive
    culture test used to assess a claim to an Aboriginal right involves a factual
    inquiry into the practices, customs, and traditions of Aboriginal cultures.
[355]


[395]

In
Van der Peet
,
    the Supreme Court recognized that appellate review would engage a consideration
    of the evidence presented at trial, as well as the findings of fact made by the
    trial judge, and that considerable deference was owed to a trial judges
    findings of fact.
[356]
Nevertheless, the Supreme Court held that a trial judges determination of the
    scope of Aboriginal rights, based on the facts as found, involves a question of
    law to which deference is not owed, stating:

In the case at bar, Scarlett Prov. Ct. J., the trial judge,
    made findings of fact based on the testimony and evidence before him, and then
    proceeded to make a determination as to whether those findings of fact
    supported the appellants claim to the existence of an aboriginal right.
The
    second stage of Scarlett Prov. Ct. J.s analysis  his determination of the
    scope of the appellants aboriginal rights on the basis of the facts as he
    found them  is a determination of a question of law which, as such, mandates
    no deference from this Court.  The first stage of Scarlett Prov. Ct. J.s
    analysis, however  the findings of fact from which that legal inference was
    drawn  do mandate such deference and should not be overturned unless made on
    the basis of a palpable and overriding error.
This is particularly the
    case given that those findings of fact were made on the basis of Scarlett Prov.
    Ct. J.s assessment of the credibility and testimony of the various witnesses
    appearing before him.
[357]

[396]

In
Marshall
,
    the Supreme Court applied the
Van der Peet
standard of review to the interpretation
    of a provision in an Aboriginal treaty. At issue in that case was whether a
    right existed under a 1760 Treaty of Peace and Friendship that enabled the
    Mikmaq claimant to fish for trade. Writing for the majority, Binnie J. noted
    that [t]he only contentious issues arose on the historical record and with
    respect to the conclusions and inferences drawn by [the trial judge] from the
    documents, as explained by the expert witnesses.
[358]
Binnie J. concluded that [t]he permissible scope of appellate review in these
    circumstances was outlined by Lamer C.J. in
R. v. Van der Peet
at
    para. 82, which is reproduced in the paragraph above.
[359]

[397]

Binnie J. found that
    the trial judge erred in interpreting the truckhouse provision of the 1760
    Treaty of Peace and Friendship by failing to give adequate weight to the
    concerns and perspective of the Mikmaq people and by giving excessive weight
    to the concerns and perspective of the British, resulting in an overly
    deferential attitude to the text of the treaty.
[360]


(b)

The Implications of
Sattva

[398]

Notwithstanding that
    the Supreme Court has not departed from
Marshall

s standard of
    review, the Huron and Superior Plaintiffs and some interveners submit that the
Marshall
standard must now give way to the more deferential standard applicable to
    contract interpretation set out in
Sattva
by reason of the fact-heavy
    inquiry into the parties common intention involved in the two-step treaty
    interpretation process.

[399]

In
Sattva
,
    the Supreme Court discarded the historical approach of classifying the
    interpretation of a contract as a question of law for purposes of appellate
    review in favour of more deferential treatment as a question of mixed fact and
    law, under which appellate intervention is confined to demonstrated palpable
    and overriding errors.
[361]

Sattva

s deferential standard of review is subject to two
    exceptions:

(i)

Deference does not
    apply where it is possible to identify an extricable question of law from
    within a question of mixed fact and law, in which case the correctness standard
    applies to that extricable question.
[362]
In the context of contractual interpretation, extricable questions of law
    include the application of an incorrect principle, the failure to consider a
    required element of a legal test, and the failure to consider a relevant
    factor.
[363]
In the context of treaty interpretation, extricable questions of law include an
    incorrect application of the numerous treaty interpretation principles
    enumerated in
Marshall
, at para. 78; and

(ii)

The other exception is that
    identified by the Supreme Court in
Ledcor
.
[364]
There, the court treated as a question of law the interpretation of a standard
    form contract, where the interpretation at issue is of precedential value, and
    there is no meaningful factual matrix that is specific to the parties to assist
    the interpretation process.
[365]

[400]

The Huron and Superior
    Plaintiffs urge this court to follow the reasons on the standard of review of
    the dissenting judge in the Court of Appeal for British Columbias decision in
West
    Moberly
.
[366]
That case involved the interpretation of a treatys description of the boundary
    of a particular tract of land. The dissenting judges approach deviates from
Marshall
and would apply a deferential standard of review to legal inferences or
    conclusions drawn from findings of historical fact:

In my view, the principles outlined in
Sattva
provide
    guidance in the approach to be taken to the standard of review with respect to
    treaty interpretation. Contract and treaty interpretation involve analogous
    (though not identical) considerations. Like contract interpretation, treaty
    interpretation involves the application of legal principles of interpretation
    to the text of the written treaty, considered in light of the factual matrix.
    For historical treaties, that matrix includes the historical and cultural
    context of the time. Thus, the standard of review that applies to treaty
    interpretation is overriding and palpable error unless the error alleged
    involves an extricable question of law.
[367]

[401]

The dissenting judges
    approach did not find favour with the majority in
West Moberly
, who applied
    a standard of review echoing that set out in
Marshall
,

stating:

It is common ground that no deference is owed to judicial
    conclusions stemming from legal error. A correctness standard of review applies
    to a finding of the trial judge that can be traced to an error in his or her
    characterization of the legal standard:
Housen
at para. 33.
    Similarly,
no deference is owed to the legal conclusions a trial judge makes
    by applying the law to a historical record
:
Caron v. Alberta
, 2015
    SCC 56 at para. 61.

However, a traceable legal error must, of course, be
    identifiable to merit appellate interference on this correctness standard.
[368]

[402]

It is difficult to
    reconcile the dissent in
West Moberly
with a decision the Supreme
    Court released just over a year after
Sattva
, the decision in
Caron
.
[369]

Caron
did not involve issues of Aboriginal rights or treaty rights; it considered the
    issue of whether a post-Confederation constitutional document, the 1870
Ruperts
    Land and North-Western Territory Order

(U.K.) (the 
1870 Order
),
    created a right to legislative bilingualism in the province of
    Alberta.

[403]

In the course of its
    interpretation of the
1870 Order
, the majority of the court found
    guidance in its jurisprudence on Aboriginal rights and treaties and affirmed
    the continued application of the standard of review analysis in
Van der
    Peet
and
Marshall
, stating:

While we take no issue with the factual findings of the
    provincial court judge regarding the negotiations between the delegates and
    Canada, we disagree with his legal conclusion that the negotiations resulted in
    a pact with Canada to establish legislative bilingualism in all of the annexed
    territories (para. 354). In this respect,
there is a helpful distinction
    drawn in Aboriginal rights jurisprudence between a trial judges findings of
    fact on historical matters, which are entitled to deference, and the legal
    inferences or conclusions that a trial judge draws from such facts, which are
    not
. As Lamer C.J. explained in
R. v. Van der Peet
, [1996] 2 S.C.R.
    507, [the trial judges] determination of
the scope of the appellants
    aboriginal rights on the basis of the facts as he found them . . . is a
    determination of a question of law which, as such, mandates no deference from
    this Court
(para. 82; see also
R. v. Marshall
, [1999] 3 S.C.R. 456,
    at para. 18; and
R. v. Sappier
, 2004 NBCA 56, 273 N.B.R. (2d) 93, at
    para. 76). In our view, the same distinction applies with respect to the
    historical factual findings of the provincial court judge in this case, and the
    legal inferences he draws on the basis of these facts.
[370]


[404]

Caron
confirms that, notwithstanding
Sattva

s

modification of
    the standard of review for contract interpretation, the
Marshall
standard of review remains in place, including the principle that legal
    inferences or conclusions regarding the meaning of a historical treaty
    provision drawn by a trial judge from historical facts are not entitled to
    deference on appellate review.
[371]

(c)

Policy Considerations

[405]

In our view, two
    policy considerations also support the application of the
Marshall
standard of review in this case.

[406]

First, the Huron and
    Superior Plaintiffs efforts to functionally analogize treaty interpretation
    with contract interpretation ignores the distinctive nature of Aboriginal
    treaties under Canadian law. Our jurisprudence regards a treaty between Canada
    and a First Nation as a unique,
sui generis
agreement, which attracts
    special principles of interpretation, and possesses a unique nature in that the
    honour of the Crown is engaged through its relationship with Aboriginal people.
[372]
As put by the late Peter W. Hogg, an Aboriginal treaty is not a contract, and
    is not subject to the rules of contract law. It is an agreement between the
    Crown and an aboriginal nation.
[373]

[407]

The uniqueness of
    Aboriginal treaties stems, in part, from their public, political nature in
    establishing and shaping the on-going relationship between political
    communities. Professor Dwight Newman has eschewed analogizing Aboriginal
    treaties to contracts preferring, instead, to describe them as covenants, a
    concept he thinks better captures their broader public, political role as
    foundational documents that establish the bases of relations between Aboriginal
    peoples and the larger Canadian community. Professor Newman writes:

A covenantal conceptualization of treaties would essentially
    see them as agreements between political communities expressing the terms of
    the ongoing evolution of relationships between those communities. To see them
    as such does not mean ignoring their express terms. Nonetheless, a covenant, in
    this sense, differs from a contract in several key ways. It concerns the
    establishment of the terms of a long-term relationship rather than a deal over
    more specifically defined matters. It has a broad, typically non-commercial
    orientation rather than a narrow, typically commercial purpose. It recognizes
    the intrinsic value of the other party rather than having a fundamentally
    instrumentalist orientation.
[374]


[408]

Second, as this court
    observed in
Keewatin
, treaties are solemn agreements that are intended
    to last indefinitely.
[375]
Indeed, the annual annuities in both Robinson Treaties are described as
    perpetual in nature.

[409]

In
Ledcor
,
    the precedential value of the interpretation of a provision in a standard form
    contract informed, in part, the courts adoption of a correctness standard of
    review. So, too, precedent is more likely to be controlling in the
    interpretation of a treaty than in an ordinary contract, especially for the Robinson
    Treaties that call for revisiting the amount of the annuities from time to
    time. While a specific treaty may only affect a defined group of First
    Nations, by their nature treaties concern not only persons who lived in the
    past and are living in the present, but also future generations to come of both
    Aboriginal and non-Aboriginal persons.

[410]

The perpetual,
    multi-generational nature of treaty provisions makes the interpretation of
    their provisions of interest to judges and lawyers in the future, as put by
Ledcor
.
[376]
Consequently, the degree of generality or precedential value of treaty interpretation
    or, put negatively, the lack of its utter particularity, moves the question
    of treaty interpretation across the line from a question of mixed fact and law
    to one of law and calls for a consistency of interpretation that is the
    objective of a standard of correctness.
[377]

(3)

Conclusion

[411]

For these reasons,
    when reviewing the trial judges interpretation of the Robinson Treaties, we
    shall apply the standard of review set out in
Marshall
.

E.

Analysis of the Trial Judges
    Interpretation of the Treaties

[412]

The primary issue at
    the trial was the interpretation of the Robinson Treaties. The trial judge
    called it [t]he focus of this hearing and the primary dispute.
[378]
The same is true of this appeal. Mr. Schachter, counsel for the Superior
    Plaintiffs, called treaty interpretation the main event. We agree with that
    characterization.

[413]

To provide context for
    the following analysis, we note here our respectful point of departure from our
    colleagues reasons. We conclude that the trial judge erred in finding that the
    Robinson-Huron and Robinson-Superior Treaty annuities were a collective
    entitlement containing within them a separate distributive amount payable to
    individuals. That is, the trial judge erred when she expressly found that the
    collective entitlement was 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.

[414]

This bifurcation of
    the annuities led to the trial judges conclusion that the £1 per person cap
    applied only to the individual distributive amount and that there was no cap on
    the collective entitlement, which was to be augmented, as expressed in her
    judgments, to reflect in the annuities a fair share of the value of the
    resources, including the land and water in the Treaties territory.

[415]

In our respectful
    view, this conclusion was the product of errors of law in the interpretation of
    the Treaties. The only reasonable interpretation is that there was only one
    annuity under each Treaty, which was to be (and in fact was historically)
    distributed in its entirety to the members of the First Nations. That annuity
    was subject to an aggregate cap of £1 per person, but, in our view, this was
    a soft cap and was subject to further increases through the exercise of Her
    Majestys graciousness.

[416]

The errors of law were
    as follows:

1.

failing to consider the plain meaning of the Treaties text;

2.

finding ambiguity where there was none;

3.

going beyond a generous interpretation of the Treaties by exceeding what
    was possible on their language; and

4.

failing to consider the
only
reasonable interpretation that
    reconciled the common intention of
both
parties.

[417]

In this section, we
    will examine each of these errors and will explain how they led the trial judge
    to an unreasonable interpretation of the Treaties. We will identify a more
    reasonable interpretation, which was identified by the trial judge herself, but
    which she failed to explore. We refer to this interpretation as the fourth
    interpretation.

[418]

In the next section,
    we will explain why the fourth interpretation is consistent with the parties
    common intention and more faithful to the historical record than the
    interpretation advanced by the trial judge. As we will explain, the fourth
    interpretation is grounded in the words of the Treaties, and gives meaning to
    Her Majestys graciousness. It gives the Crown discretion as to when and how
    it will give effect to the Treaties promises. But that discretion must be
    exercised. It cannot be ignored. The Crowns failure to exercise its discretion
    for 150 years is a failure to diligently implement the Treaty promise. This
    failure runs contrary to the principle of the honour of the Crown and s. 35 of
    the
Constitution Act, 1982
. In its role as guardian of the
    Constitution, this court must ensure the fulfillment of the Crowns
    long-neglected promise to the beneficiaries of the Robinson Treaties.
[379]

(1)

First Error: Failing to Consider the Plain Meaning of the Treaties
    Texts

[419]

In our view, the trial
    judge erred in law in the application of the principles of treaty
    interpretation because she never gave the language of the Robinson Treaties a
    fair opportunity to speak. This was not a case in which some terms of the
    Treaties were found in or modified by oral promises extrinsic to the Treaty
    documents. Moreover, Robinson was at pains to ensure that the Treaties were
    orally interpreted from English to Anishinaabemowin before they were signed.
    The words of the Treaties are therefore a central component of the
    interpretation exercise in this case.

[420]

As Binnie J. observed
    in
Marshall
: The starting point for the analysis of the alleged
    treaty right must be an examination of the specific words used in any written
    memorandum of its terms.
[380]
To the same effect, Cory J. stated in
Badger
:

Treaties are analogous to contracts, albeit of a very solemn
    and special, public nature. They create enforceable obligations based on the
    mutual consent of the parties.
It follows that the scope of treaty rights
    will be determined by their wording, which must be interpreted in accordance
    with the principles enunciated by this Court.
[381]

[421]

The need to begin the
    analysis with the facial meaning of the treaty language was also highlighted
    by McLachlin J. (dissenting, but not on this point) in
Marshall
:

The fact that both the words of the treaty and its historic and
    cultural context must be considered suggests that it may be useful to approach
    the interpretation of a treaty in two steps. First, the words of the treaty
    clause at issue should be examined to determine their
facial meaning
, in
    so far as this can be ascertained, noting any
patent ambiguities
and
    misunderstandings
that may have arisen from linguistic and cultural
    differences
. This exercise will lead to one or more possible
    interpretations of the clause. The objective at this stage is to develop a
preliminary
,
    but not necessarily determinative, framework for the historical context
    inquiry, taking into account the need to avoid an unduly restrictive
    interpretation and the need to give effect to the principles of interpretation.
[382]

[422]

With this approach in
    mind, we return to the pertinent language of the Treaties, set out in the joint
    reasons, which we repeat for convenience:

The Consideration Clause (Robinson-Huron Treaty):

[F]or and in consideration of the sum of two thousand pounds of
    good and lawful money of Upper Canada to them in hand paid, and for
the
    further perpetual annuity
of six hundred pounds of like money,
the same
    to be paid and delivered to the said Chiefs and their Tribes at a convenient
    season of each year
, of which due notice will be given, at such places as
    may be appointed for that purpose. [Emphasis added.]

The Augmentation Clause (Robinson-Huron Treaty):

The said William Benjamin Robinson, on behalf of Her Majesty,
    Who desires to deal liberally and justly with all Her subjects, further
    promises and agrees that should the Territory hereby ceded by the parties of
    the second part at any future period produce such an amount as will enable the
    Government of this Province, without incurring loss,
to increase the annuity
    hereby secured to them
, then
and in that case the same shall be
    augmented from time to time
,
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
; and provided further that the number of Indians entitled to the
    benefit of this treaty shall amount to two-thirds of their present number,
    which is fourteen hundred and twenty-two, to entitle them to claim the full
    benefit thereof; and should they not at any future period amount to two-thirds
    of fourteen hundred and twenty-two, then the said annuity shall be diminished
    in proportion to their actual numbers. [Emphasis added.]

[423]

The trial judge
    interpreted these provisions to mean that the Treaties promised a collective
    annuity, which had within it an individual or distributive component. As
    noted earlier, her formal judgments stipulated that the Crown was required to
    increase the annuity, without limit, so as to achieve the Treaty purpose of
    reflecting in the annuities a fair share of the value of the resources,
    including the land and water in the territory.
[383]
The judgments added that the Crown was required to consult with the Treaty
    parties to determine what portion, if any, of the increased annuity amount is
    to be distributed by the Crown to the individual Treaty rights holders in
    addition to the $4 per person per year they are already being paid.
[384]

[424]

While the trial judge
    purported to follow the two-step approach in
Marshall
, she never
    explicitly examined the augmentation clause to ascertain its facial meaning.
    Nor did she identify any patent ambiguities or misunderstandings that might
    have arisen from linguistic or cultural differences.

[425]

We make the following
    preliminary observations about the Treaty language:

·

the consideration paid by the Crown in exchange for the surrender
    of the Treaty territories had two components  an immediate payment of £2000
    and a
perpetual annuity
of £500 under the Robinson-Superior Treaty and
    £600 under the Robinson-Huron Treaty  the amounts were different because the
    population of the Huron territories was greater;

·

the annuity was to be delivered to the Chiefs and their Tribes at
    a convenient season of each summer;

·

the Crown promised to
augment the annuity
from time to
    time, if the land proved sufficiently profitable to enable the government to do
    so without incurring loss;

·

it was a condition of the augmentation (provided that) the
    amount paid to each individual could not exceed £1 in any one year or such
    further sum as Her Majesty may be graciously pleased to order; and

·

there was a second condition that the annuity would be 
diminished

    proportionately if the number of beneficiaries fell below two-thirds of the
    population at the time of the Treaties.

[426]

It is noteworthy that
    the financial terms of the annuity were consistent with Robinsons
    instructions: an initial lump-sum payment of £2,000 for each of the Huron and
    Superior parties (within the total £5,000 limited provided in the Order In
    Council (OIC)) and annuities in the total amount of £1,100 which were
    consistent with the income from the balance of the notional £25,000 fund made
    available to Robinson under the April 16, 1850 OIC.

[427]

The plain meaning of
    the augmentation clause is that the annuity was a perpetual one in the stated
    amount, payable to the Chiefs and their Tribes. It would be increased if
    economic conditions warranted. The maximum increase would be capped at £1
    ($4) per person or such further sum as Her Majesty may be graciously pleased
    to order. The capped amount would be paid to all Treaty beneficiaries, even if
    the population grew, as in fact occurred. The annuity would be proportionately
    reduced if the Anishinaabe population fell below two-thirds of the stated
    amount.

[428]

On a fair and facial
    reading, the augmentation clause did not create an annuity payable to the
    Chiefs and their Tribes as a collective and an unspecified individual
    component payable to each Treaty beneficiary. The reference to individual was
    not for the purpose of creating a separate payment to individuals. It was
    simply the means of setting a cap on the amount of future increases to the
    annuity, recognizing that the population might grow and that the total amount
    of the annuity would be required to grow with it, thereby increasing the
    Crowns overall obligation. After the cap was reached, further increases in the
    annuity could be made through the exercise of Her Majestys graciousness.

[429]

The trial judge came
    close to appreciating this when she correctly described the words provided
    that the amount paid to each individual shall not exceed the sum of one pound
    Provincial Currency in any one year as a 
condition
 of the increase of
    the annuity.
[385]
In our view, that is exactly what it was  a condition that was intended to
    limit the amount by which the annuity could be increased. It was mirrored by a
    condition requiring a reduction of the amount of the annuity if the population
    fell. Both conditions (provided and provided further) applied to the total
    amount of the annuity  one condition required the annuity to be increased and
    the other required its reduction.

[430]

Instead of giving the
    condition its obvious meaning, however, the trial judge treated it as
creating
a separate payment to individuals. This distorted its meaning and wholly
    ignored the second condition of the increase, that the annuity would be reduced
    if the population fell below a certain percentage of its number at the time of
    the Treaties.

[431]

One consequence of
    this distortion of the Treaties language is that the trial judge failed to
    give any effect to the Her Majestys graciousness provision of the
    augmentation clause. That provision was not just flowery language  it made it
    clear that the £1 per individual cap on the annuity was a soft cap. The
    intent, as conveyed by the Treaties language, was that increases above £1 per
    person could be made in the Crowns discretion and would be based on the
    revenues of the Treaty territories. In the context of the treaty negotiations,
    the invocation of Her Majestys graciousness would have played a key role in
    bridging the gap between Robinsons limited spending power and the demands of
    the Huron leaders for a $10 (£4½) annuity, which was the norm for treaties in
    Upper Canada.

[432]

In dismissing the
    import of Her Majestys graciousness, the trial judge stated that the
    Anishinaabe could not have understood this provision even if it had been
    translated, and that it could not have informed their common intention. This
    was based on a misapprehension of the evidence and was inconsistent with the
    trial judges other findings.

[433]

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.
[386]
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.

[434]

Moreover, a few
    paragraphs later in her reasons, in the context of considering the fourth
    interpretation advanced by the Huron and Superior Plaintiffs, the trial judge
    observed that it was possible that once the general principles of the Treaties
    were agreed on, the Anishinaabe, especially those represented by Chief Peau de
    Chat, were content to permit the Crown to set the amount of the annuity payments,
    understanding that Her Majestys graciousness would be exercised honourably to
    ensure that the annuities reflected the value of land, to the extent that the
    Crown would not incur a loss.
[387]
However, in spite of the fact that this interpretation gave meaning to Her
    Majestys graciousness, the trial judge gave no consideration to it in her
    ultimate analysis of which interpretation best reconciled the parties common
    intention.

[435]

As we will explain
    below, the plain meaning of the augmentation clause reconciles the common
    intention of the parties and is consistent with both the pre-Treaty and
    post-Treaty record.

(2)

Second Error: Finding Ambiguity Where There Was None

[436]

Whether a judge is
    interpreting a contract, a statute or a treaty, the principles of interpretation
    seek to reconcile two or more
reasonable
interpretations available on
    the language of the document. As this court observed in
Chilton
, a
    case involving an insurance policy, [t]he ambiguity principle  resolves
    conflicts between two reasonable but differing interpretations. The court
    should not strain to create ambiguity where none exists.
[388]

[437]

The trial judges
    finding of ambiguity is the product of a strained and illogical reading of the
    Treaties. Her error can be readily traced to para. 405 of her reasons, where
    she posited that the reference to individual in the phrase, provided that
    the amount paid to each individual in the augmentation clause was a missing
    link, because there was no other reference in the Treaties to payments to
    individuals. She explained that:

Because the initial words of the consideration clause [paid
    and delivered to the said Chiefs and their Tribes at a convenient season of
    each year] create a perpetual annuity in the form of a lump sum paid to the
    Chiefs and their Tribes, there is an obvious missing link to the last
    sub-clause where there is reference to individual payments. There is no other
    reference in the text of the Treaties that mentions payments to individuals.
[389]

[438]

The trial judge said
    that this created a real risk of misunderstanding or different
    understandings. She called this the first and most confounding ambiguity,
    although she did not identify any other ambiguity in the language of the
    augmentation clause.

[439]

After finding a
    missing link, the trial judge used the reference to £1 per individual to find
    that the annuity contained both a collective payment and an individual
    distributive payment. In our view, there was a good reason why the Treaties
    contained no other reference to individuals. As with other treaties, the
    Robinson Treaties annuity was expressed as a lump sum, but it was to be
    distributed to the individual members of the Treaty First Nations, either in
    cash or in goods. As we have observed, this is precisely what occurred in the
    case of the Robinson Treaties for 170 years. The reference to individuals was
    solely for the purpose of creating a cap on the collective annuity  that is,
    a cap of £1 per person multiplied by the number of Treaty beneficiaries at any
    given time. Having regard to the provinces desperate financial circumstances,
    it would have made no sense for Robinson to promise the Anishinaabe an
    unlimited collective annuity, while at the same time limiting individual
    payments.

[440]

Instead of examining
    the words of the Treaties to seek a reasonable and unambiguous interpretation,
    the trial judge created ambiguity and ultimately adopted an interpretation that
    was unreasonable.

[441]

In support of her
    conclusion that the reference to £1 per person was not intended as a cap on
    the annuity, the trial judge noted that increases and caps had no precedent in
    earlier treaties.
[390]
She continued:

In any event, it is more likely that Robinson, under some
    pressure from some Chiefs at the Council to ear mark some funds for individual
    distribution and in compliance with the Colborne Policy that limited his
    ability to make cash payments to individuals, set a low cap on the individual
    distributive amount (the £1 or $4 cap.) Her Majesty was left with the discretion
    to increase this cap should future circumstances permit.
[391]

[442]

The difficulty with
    this speculation is that there is no evidence that Robinson was under pressure
    at the Treaty Council to earmark funds for individual distribution. This
    speculation also presupposes that there was a recognition at the Treaty Council
    that the annuity was intended to be a collective amount from which individual
    distributive shares were to be carved out. There is no evidence of any such
    discussion.

[443]

In their report, Vidal
    and Anderson had observed that money payments are highly prejudicial to the
    interests of the Indians. As noted earlier, they had recommended that, apart
    from the first payment when the treaty was signed, subsequent payments should
    be made in clothing, provisions, goods, and implements and that provision
    should also be made for schools. Robinson did not follow this recommendation.
    As the trial judge noted, the Colborne Policy required that annuities be
    accessed through a requisition approval system that was still in place in 1850.
[392]
Robinson could easily have required that the Treaty annuities be distributed in
    goods in compliance with the Colborne Policy if he wished to do so. Not only
    did he not do so, as we have noted, the annuity was paid in cash to individual
    members of the Robinson-Superior Treaty First Nations from the very outset and
    to members of the Robinson-Huron Treaty First Nations from 1855 onwards.

[444]

In summary, instead of
    seeking the plain or facial meaning of the Treaties, the trial judge sought
    ambiguity. Her finding of ambiguity led to speculation concerning the reference
    to individuals, which was at the root of her finding that the Treaties had
    both a collective component and an individual one, with only the former being
    subject to augmentation.

(3)

Third Error: Going Beyond What Was Possible on the Language of the
    Treaties

[445]

It is a well-settled
    principle of treaty interpretation that a generous construction of treaty
    language does not permit the court to re-write the treaty.
[393]

[446]

The trial judges
    interpretation of the Treaties as giving the Anishinaabe a fair share of the
    value of the Treaty territory went beyond a generous construction of the
    Treaties and gave effect to modern concepts of fairness and generosity that are
    not found on either a fair reading of the Treaties or in a balanced assessment
    of the
common
intention of the parties.

[447]

One such modern
    concept of fairness is articulated by Professor Michael Coyle, who advocates
    for a fair sharing of the economic benefits that flow from the development of
    treaty lands, given the special, even sacred, bond between the first peoples
    of Canada and the Crown.
[394]
After all, as Professor Coyle writes, this special bond enabled the creation
    and settlement of this country.
[395]
Coyle and others argue that courts and governments should re-adjust their
    conceptions of treaties, and re-imagine the treaty relationship.

[448]

In our view, it is
    unnecessary to re-imagine the Robinson Treaties. What
is
necessary is to
    hold the Crown to the promises it has neglected for more than 150 years. That
    can be done through an interpretation that is grounded in the words of the
    Treaties and best reflects the parties common intention at the time the
    Treaties were signed  not by reading more into the words of the Treaties than
    the Treaties partners could reasonably have contemplated.

[449]

The Robinson Treaties,
    which hold a unique place in the historical treaties, expressly contemplated
    that the Treaty relationship would be a continuing one, which would be periodically
    renewed and refreshed, having regard to the needs of the Anishinaabe and the
    means of the Crown.

[450]

As we will explain,
    the fourth interpretation, coupled with the honour of the Crown, provides a
    basis for the augmentation of the annuities in a manner that renews the Treaty
    relationship and promotes reconciliation. This calls for periodic
    reconsideration of the Treaties annuities in consultation with the Treaties
    beneficiaries.

(4)

Fourth Error: Failing to Consider the Only Interpretation that
    Reconciled Both Parties Intentions

[451]

In
Marshall
,
    Binnie J. referred to the bottom line of treaty interpretation as the courts
    obligation to choose from among the various possible interpretations of the
    common intentions, at the time the treaty was made, the one that best
    reconciles the First Nations interests and those of the Crown.
[396]

[452]

As we noted earlier,
    the trial judge observed that [o]n the words of the text alone, there were
    three possible interpretations of the augmentation clause.
[397]
They can be summarized as follows:

·

an annuity
capped
at £1 per person;

·

an
obligation
to make further orders
    above £1 per person, based on the Her Majestys graciousness clause, when
    economic circumstances permitted; or

·

a collective promise to share the revenues from the territory
    with the collective, whenever it was possible to do so without loss, with the
    £1 cap being a limit only on the amount payable to individuals.
[398]

[453]

In our view, none of
    these interpretations were available on a fair reading of the Treaties
    language.

[454]

The first
    interpretation is unreasonable because a hard cap gives no effect to the Her
    Majestys graciousness clause, which imports a discretion to increase the
    annuity above $4 per person. The second interpretation is equally unreasonable
    because it suggests the Crown was under an
obligation
to increase the annuity if circumstances permitted, based on Her Majestys
    graciousness. The existence of an obligation is inconsistent with Crown
    discretion. For the reasons we have identified above, the third interpretation
    is a strained and illogical interpretation of the Treaties and exceeds what is
    possible on their language.

[455]

In our respectful
    view, the fourth interpretation, which the trial judge identified but never
    pursued, is supported by the evidence on common intention to a much greater
    extent than any of the three interpretations identified by the trial judge.

[456]

The trial judge noted
    that the Huron and Superior Plaintiffs had put forth an alternative
    interpretation of the £1 amount in the Treaties:

The Plaintiffs submit that, alternatively, if the reference to
    a £1 amount is interpreted as a temporary or permanent cap on the whole of the
    collective entitlement, the most plausible explanation why Robinson chose a £1
    amount was that Robinson was using the £1 amount as a placeholder, as per
    other treaties made previously in Upper Canada. In other words, the £1 amount
    was not the true extent of the consideration, but simply a placeholder amount.

The parties did not fully develop this argument; however, as an
    alternative characterization of the £1 amount,
it has a
    certain logic
. Once the general principles of the Treaty were agreed,
    the First Nation parties, especially those represented by Chief Peau de Chat,
    were content to permit the Crown to set [the] amount of the annuity payments,
    understanding that Her Majestys graciousness would be exercised honourably to
    ensure that the annuities reflected the value of land, to the extent that the
    Crown would not incur a loss.
[399]

[457]

The trial judge did
    not fully consider this interpretation, apparently because the parties did not
    develop it, but she clearly thought there was a certain logic to it. Leaving
    aside the placeholder characterization, which was speculative, this
    interpretation is consistent with the £1 amount being a soft cap. It also
    gives real meaning to Her Majestys graciousness in the context of the
    augmentation clause.

[458]

As we will explain in
    the next section, the fourth interpretation not only best reconciles the
    parties common intention, it is also most consistent with the historical
    record.

F.

Reconciling the Parties Intentions in a Manner Consistent with the
    Historical Record

[459]

The fourth
    interpretation reconciles the intentions of
both
parties at the time the Treaties were signed. The Crown realized its pressing
    objective of opening up the territories for mineral development and did so at a
    cost that its beleaguered Treasury could bear. The soft cap (a
    characterization we would employ rather than placeholder) limited the Crowns
    immediate exposure to a modest annuity, but gave it the discretion to augment
    the annuity in excess of £1 per person in the future, if the territories proved
    profitable. From Robinsons perspective, as the trial judge noted when
    considering the fourth interpretation, this would satisfy the expectations of
    the Anishinaabe, while at the same time, limit the Crowns financial exposure
    and not impose an unreasonable administrative burden on the Crown.
[400]
The administrative burden referred to the need for a strict accounting of the
    revenues from the territories.

[460]

On the Anishinaabe
    side, many of the Chiefs at the Treaty Council were prepared to follow Chief Peau
    de Chats lead and trust in the Great Mother to act fairly toward her
    children. The dissenting Huron Chiefs, Shingwaukonse and Nebenaigoching, only
    signed their Treaty when it became apparent that the Superior Chiefs had
    accepted Robinsons proposal and the other Huron Chiefs were prepared to follow
    their lead. Faced with the prospect of no cash payment and no annuity if they
    did not accept Robinsons offer, the promise of future increases in the annuity
    up to £1 if the land proved profitable and additional increases in Her
    Majestys graciousness, helped bridge the gap between the Chiefs demands and
    the amount of the initial annuity.

[461]

While it is clear that
    Chiefs Shingwaukonse and Nebenaigoching would have preferred a more generous
    annuity, it is also clear that they ultimately accepted what they were offered,
    relying on the Crown to augment the annuity in a liberal and just manner, as
    the Treaties promised. The Anishinaabes reliance on the Queens generosity is
    consistent with the uncontroverted evidence that the Anishinaabe understood the
    Great Mother as a generous leader, who would provide for her childrens
    needs and would share in the bounty of their land, rather than keep it to
    herself.

[462]

Robinson would have
    appreciated that relationship of trust and knew that the reference to Her
    Majestys intention to deal liberally and justly with her subjects would
    reflect Anishinaabe perceptions of a good leader. In the words of the trial
    judge, again referring to the fourth interpretation, the Anishinaabe,
    especially those represented by Chief Peau de Chat, understood that Her
    Majestys graciousness would be exercised honourably to ensure that the
    annuities reflected the value of the land, to the extent that the Crown would
    not incur a loss.
[401]

[463]

The fourth
    interpretation also satisfies the trial judges concern that both the Crown and
    the Anishinaabe expected to be in an ongoing relationship, characterized by
    reciprocity, renewal and respect. The Anishinaabe may not have understood the
    legal niceties of the Royal Prerogative or the honour of the Crown but they
    knew, from their long relationship with the Crown, their shared language of
    kinship and the customs associated with treaty-making, that the Robinson
    Treaties were intended to renew their longstanding relationship with the Crown.
    The Crowns express Treaty assurance of its desire to treat the Anishinaabe
    liberally and justly, the promise of future augmentation of the annuity if the
    land proved profitable and the invocation of Her Majestys graciousness, can
    only be seen, in this context, as an assurance to the Anishinaabe that the
    Treaty relationship with the Crown would not only endure, but would be
    periodically renewed.

[464]

While the concept of
    future revenue sharing, subject to a soft cap, was not to be found in
    Robinsons instructions, he did keep within the financial authority he had been
    given as regards the cash payments and the amount of the annuities. He plainly
    regarded a modest increase of the annuity to £1, an amount less than one half
    of the annuities paid in the fertile lands to the south, if and when the net
    revenues were sufficient, as something that was so reasonable that he felt
    confident it would be accepted by the Executive Committee of which he was a
    member. The Her Majestys graciousness clause provided the Crown with
    discretion to increase the annuities if it could do so without loss and assured
    the Anishinaabe that a liberal and just Sovereign would share the wealth of
    the land with them if and when it was possible to do so.

[465]

The fourth
    interpretation is also consistent with the evidence on the parties common
    intention to include an annuity in the Treaties. Both the Vidal-Anderson Report
    and Robinsons instructions, set out in the April 16, 1850 OIC, contemplated
    payment of an annuity. The Anishinaabe were familiar with the use of annuities
    in southern treaties. Some Anishinaabe leaders based their demands on the $10
    per person annuity that had been paid in exchange for the cession of arable
    lands in the south of Upper Canada. The subject was discussed both before the
    treaty negotiations and at the Treaty Council, where both Chiefs Shingwaukonse
    and Nebenaigoching spoke about annuities and compared Robinsons offer to the
    annuities that were being paid elsewhere in Upper Canada ($10) and in the
    United States (significantly more). Chief Peau de Chat originally sought an
    even higher annuity, asking for $30 per person.

[466]

There is nothing in
    the record of the Treaty Council to indicate that the Anishinaabe were seeking
    compensation in any form other than a traditional annuity or that Robinson was
    under pressure to earmark funds for individual distribution. It is true that
    the Treaty records are incomplete because the record of the speeches made by
    the Anishinaabe Chiefs have been lost. Nevertheless, Robinsons detailed treaty
    diary did not mention either demands for a share of the wealth of the
    territories or an individual distributive share. The Treaty Council demands
    of Chiefs Shingwaukonse and Nebenaigoching focused on the amount of the
    annuities traditionally paid in the south of Upper Canada or in the United
    States.

[467]

The trial judge
    suggested that an entry in Robinsons treaty diary concerning a meeting with
    Governor General Lord Elgin in Sault Ste. Marie on August 30 and 31, prior to
    the Treaty Council, was evidence that the Governor General had approved the
    trial judges fair share interpretation of the Treaties.
[402]
Robinson recorded that he met with the Governor General and informed him of his
    intentions as to the treaty, of which the Governor General approved. There is
    no reference in Robinsons treaty diary or in any other document he prepared as
    to exactly what his intentions were. The trial judge stated, however, [i]t
    is reasonable to conclude that if Robinson was contemplating treaty terms
    outside the past practice of the Government, and possibly committing a share of
    future proceeds from the territory, that he discussed this idea and sought the
    approval from the Governor General himself.
[403]

[468]

The trial judge
    concluded:

Robinson would have discussed this novel idea for the augmentation
    clause with Lord Elgin, and Lord Elgin gave him the authorization he needed to
    proceed. This is consistent with what is known about the way Robinson acted. He
    secured Lord Elgin's approval to proceed on that basis.

Finally, there is nothing in the historical record following
    the Treaties to suggest that either the Governor General or the Executive
    Council were unhappy with the augmentation clause. Robinson must have been
    confident that he had secured approval to make a treaty on the basis of an augmentation
    provision with Lord Elgin. Hence, he said in his report: I trust his
    Excellency will approve of my having concluded the treaty....
[404]

[469]

In our respectful
    view, the inference the trial judge drew  that Robinson obtained approval from
    the Governor General for the third fair share interpretation  was simply not
    available to her. The words of the diary speak for themselves: Robinson told
    Lord Elgin of his intentions and Lord Elgin approved them. The idea that the
    Governor General approved the novel idea (the trial judges concept of a fair
    share with an uncapped annuity) is a matter of pure speculation.
[405]
It is equally likely that Robinson informed the Governor General of his
    intention to provide a modest annuity with a soft cap of £1, with future
    increases occurring if and when the funds were available and subject to Her
    Majestys graciousness.

[470]

The fact that there
    was nothing in the historical record to suggest that Lord Elgin and the
    Executive Council were unhappy with the augmentation clause is equally
    consistent with the fourth interpretation of the Treaties.

[471]

Although it is
    impossible to resolve exactly what conversations took place between Robinson
    and Lord Elgin, it should be remembered that the government of the day was
    broke, as the trial judge put it.
[406]
In these circumstances, it seems highly unlikely that Robinson would have
    proposed, and Lord Elgin would have approved, a treaty that committed the
    government to an unlimited, mandatory and perpetual sharing of future
    revenues. It seems even more unlikely that, had Robinson received those
    instructions from the Queens representative, he would not have mentioned them
    in his diary, in his report to the Executive Committee, or in his subsequent
    communications.

[472]

If Robinson had been intent
    on changing what the trial judge referred to as the known patterns of treaty
    making and adopting a novel approach that would give the Anishinaabe a fair
    share of the future revenues of the territory, it also seems strange that he
    would have buried the language in the middle of terms dealing with the
    augmentation of the annuity, to be revealed through a missing link, which was
    only discovered some 170 years later.
[407]

[473]

More telling, had it
    been his intention to change the long-standing pattern of treaty-making by
    giving the Anishinaabe a fair share of the value of the territories he would
    certainly have made reference to that decision at the Treaty Council, in his
    treaty diary, in his Report to the Executive Council or in his subsequent
    correspondence on the issue, some of which responded to criticisms of the
    Treaties. Indeed, it is telling that there is nothing in the post-Treaty
    record, on either side, that demonstrates an understanding that the Robinson
    Treaties were intended to be a departure from the traditional course of
    treaty-making, other than to provide for an increase in the annuity if the land
    proved profitable.

[474]

In that regard, we
    return briefly to the post-Treaty record.

[475]

The trial judge found
    the post-Treaty record of limited assistance in the interpretative exercise.
[408]
What is striking about that record, however, and what the trial judge failed to
    consider, is the absence of
any
evidence to
    support the notion that the Treaties were intended to provide the Anishinaabe
    with a fair share of the wealth of the Treaty territories, as the trial judge
    found.

[476]

While there were
    complaints of various kinds after 1850 by and on behalf of the Anishinaabe, no
    one ever suggested that the Crowns obligation was unlimited or that the
    Treaties compelled the payment of a fair share. While the Robinson Treaties
    have been noted to be innovative in the use of an augmentation clause, none of
    the historians cited in the record has suggested that the Treaties were
    intended to give the First Nations a fair share of the revenues from the
    territories.
[409]

[477]

Indeed, as early as
    November 1850 Captain George Ironside, the Superintendent of Indian Affairs at
    Manitowaning, wrote to his superior, Colonel R. Bruce, the Superintendent
    General of Indian Affairs, noting that Chief Shingwaukonse was said to be very
    much dissatisfied indeed with the late Treaty and had been led by designing
    persons to believe that the Anishinaabe had been shamefully deceived,
    particularly with regards to the amount of the annuity. The letter said that
    Chief Shingwaukonse was taking a deputation to England, to make their complaint
    to the authorities there.

[478]

Colonel Bruce
    transmitted this communication to Robinson, who replied:

The clause I introduced to increase the amount under certain
    reasonable circumstances should [and] I have no doubt will satisfy the Indians
    generally  and convince Her Majestys [Government] that they have no just
    cause of complaint It may well be for [Captain] Ironside to explain to such of
    the Indians as he meets with at any time that part of the Treaty, which secures
    to them a larger annuity should the territory surrendered enable the
    [Government] to [increase] it without loss.

[479]

There is no suggestion
    in Robinsons response that there were two components of the annuity, one an
    individual payment and the other a payment to the collective. Nor is there any
    suggestion that the Treaties offered an unlimited fair share of the revenues
    from the Treaty territories, something that Robinson would surely have said in
    defence of the Treaties he drafted.

[480]

Particularly telling,
    as well, is Robinsons response to a subsequent complaint made by two Lake
    Huron Chiefs, who had sent a petition to the Governor General, complaining that
    they had understood that the annuity to be received by each band was to be in
    proportion to the quantity of land it had been allocated by the Robinson-Huron
    Treaty.

[481]

Colonel Bruce
    forwarded the communication to Robinson, noting in his letter:

My impression gathered from your report [sic] the treaty itself
    and the numerical lists transmitted as a guide for the distribution of the
    annuities distinctly was that
all the Indians belonging to the Tribes
    interested were to share in it alike
, and as I understand the payments you
    made on the spot, were governed by that principle.

The following extract from the Treaty seems to show
    conclusively that the distribution
was to be per
capita
and not as suggested by the Petitioners
[:] And in that case the same (the
    Annuity) shall be augmented from time to time provided that the [amount] paid
    to each individual shall not exceed the sum of one pound currency in any one
    year. [Emphasis added.]

[482]

Robinson replied:

I can only say that
the Treaty made by me
    with the Indians last year was based on the same conditions as all preceding
    ones I believe
. These conditions even fully explained in Council [and]
    are also clearly expressed in the Treaty. Nothing was said by the Chiefs
    [illegible] of the nature mentioned in the extract you sent me and all seemed
    satisfied both at the signing of the Treaty and payment of the money with the
    terms on which I concluded the surrender by them to Her Majesty. [Emphasis
    added.]

[483]

Once again, had
    Robinson believed that the Treaty included a collective annuity that could be
    greater than the sum of the individual per capita annuities, he would not
    have described it as being based on the same conditions as all preceding
    ones. He would also, surely, have brought this feature to the attention of
    Colonel Bruce.

[484]

Having received
    Robinsons response, Colonel Bruce, on behalf of the Governor General,
    responded to Captain Ironside as follows:

With reference to the distribution of the Annuity he sees no
    reason to suppose that a different rate was to be pursued in this from other
    cases.
Indeed the Treaty clearly recognizes in all Indians entitled to
    participate in the annuity the right to share equally
. These views are
    entertained by Mr. [Robinson?] to whom I have referred for information on the
    subject and were has he states fully explained in Council of the Chiefs before
    the Treaty was signed. [Emphasis added.]

[485]

In 1858, the
    Pennefather Commission was constituted by the government to investigate the
    best means of securing future progress and civilization of the Indian Tribes in
    Canada and the best mode of  managing the Indian Property as to secure its
    full benefit to the Indians, without impeding the settlement of the country.
    The Pennefather Commissions observations concerning the Robinson Treaties
    included the following:

[W]e do not hesitate to express our decided regret, that Treaty
    shackled by such Stipulations, whereby a vast extent of Country has been wrung
    from the Indians for such a comparatively nominal sum, should have received the
    sanction of the Government.

[486]

These observations,
    made less than a decade after the Treaties were signed, are inconsistent with
    the concept of an unlimited annuity or a fair sharing of the revenues of the
    Treaty territories, something that would have been a novel departure from
    traditional treaty-making.

[487]

While the historical
    record contains complaints about the amount of the annuity, there is nothing in
    the record to indicate that either the Crown or the Anishinaabe believed that
    the annuity had both a collective component and an individual component.

G.

Conclusion on Treaty Interpretation

[488]

The trial judge made
    extricable errors of law in her interpretation of the Treaties. The trial
    judges interpretation was neither supported by the language of the Treaties
    themselves, nor by the pre-Treaty or post-Treaty evidence. There was a
    reasonable fourth interpretation of the augmentation clause, which the trial
    judge failed to consider. The fourth interpretation is the only one that is
    grounded in the unambiguous words of the Treaties and is supported by the
    evidence on the parties common intention at the time the Treaties were signed.
    Even the Huron and Superior Plaintiffs counsel suggested that the fourth
    interpretation was reasonable, as long as Her Majestys graciousness was not
    interpreted as a reference to unfettered discretion.

[489]

This raises the
    question  does the Crown have an obligation to augment the annuity under the
    fourth interpretation?

[490]

For over 170 years,
    the Robinson Treaties have been interpreted and implemented as requiring a
    payment capped at $4. Counsel for the Superior Plaintiffs advised us that, to
    this day, the members of the Robinson-Huron and Robinson-Superior Treaty First
    Nations receive a $4 cheque or two toonies distributed personally each year.

[491]

Both Ontario and
    Canada agree that the annuities should be increased. Ontario says that the
    annuities should be indexed for inflation. Canada says that it should be
    accomplished through the augmentation clause. They cannot agree on who bears
    the responsibility for the increases, an issue to be resolved, if necessary, in
    Stage Three of these proceedings.

[492]

Below, we will explain
    why we agree with the trial judge, and the majority, that after 150 years of
    inaction, the Crown can be compelled to exercise its discretion to address an
    injustice that brings dishonour to the Crown.

H.

The Honour of the Crown

(1)

The Principles of the Honour of the Crown

[493]

There is no dispute
    concerning the legal principles arising from the honour of the Crown. Nor was
    there any dispute at trial or in this court that the honour of the Crown binds
    the Crown in its dealings with the beneficiaries of the Robinson Treaties. The
    real issues are the duties flowing from the honour of the Crown, the impact of
    those duties on the Treaty promises, and the remedies available for breach of
    those duties.

[494]

The principles arising
    from the honour of the Crown have been expressed and developed in a number of
    decisions of the Supreme Court, notably
Mikisew Cree
(2018),
[410]

Badger
,
Marshall
,
Manitoba Metis
, and
Haida
    Nation
.
[411]
Those cases establish the following general propositions:

·

[t]he honour of the Crown is a foundational principle of
    Aboriginal law and governs the relationship between the Crown and Aboriginal
    peoples. It arises from the Crowns assertion of sovereignty over an
    Aboriginal people and
de facto
control of land and resources that were
    formerly in the control of that people and goes back to the Royal Proclamation
    of 1763;
[412]

·

the honour of the Crown recognizes that the tension between the
    Crowns assertion of sovereignty and the pre-existing sovereignty, rights and
    occupation of Aboriginal peoples creates a special relationship that requires
    that the Crown act honourably in its dealings with Aboriginal peoples;
[413]

·

the underlying purpose of the honour of the Crown is to
    facilitate the reconciliation of Aboriginal peoples pre-existing sovereignty
    and the Crowns assertion of sovereignty;
[414]

·

one way that the honour of the Crown reconciles the tension
    between the Crowns assertion of sovereignty and the pre-existing sovereignty
    rights of Aboriginal people is by promoting negotiation and the just
    settlement of Aboriginal claims as an alternative to litigation and judicially
    imposed outcomes. This endeavour of reconciliation is a first principle of
    Aboriginal law;
[415]

·

[t]he honour of the Crown is always at stake in its dealings
    with Aboriginal peoples. As it emerges from the Crowns assertion of
    sovereignty, it binds the Crown
qua
sovereign. Indeed, it has been
    found to apply when the Crown acts either through legislation or executive
    conduct;
[416]

·

the honour of the Crown 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.
[417]
Because of the close relationship between the honour of the Crown and s. 35 of
    the
Constitution Act, 1982
, the honour of the Crown has been described
    as a constitutional principle, enshrined in s. 35(1);
[418]
and

·

the duties that flow from the honour of the Crown vary with the
    situation in which it is engaged.
[419]
The obligations that are imposed by the honour of the Crown and what
    constitutes honourable dealing depends heavily on the circumstances.
[420]

[495]

The honour of the
    Crown is not a cause of action itself.
[421]
Instead, the honour of the Crown gives rise to a variety of actionable duties.
    As explained in
Manitoba Metis
, the honour of the Crown speaks to
how
obligations that attract it must be fulfilled.
[422]

[496]

The Supreme Court has
    recognized duties that flow from the honour of the Crown in a variety of
    circumstances. For example, in
Marshall
, the honour of the Crown was
    used to give meaning and substance to promises made by the Crown, in the
    absence of a complete written text. In
Manitoba Metis
, the court found
    that a persistent pattern of errors and indifference had frustrated a solemn
    Crown promise  the Crown was ultimately required to take a broad and purposive
    approach to the interpretation of its legislative promise to the Metis and to
    act diligently to fulfill it. In
Haida Nation
, the honour of the Crown
    drove a duty to consult and reasonable accommodations of Aboriginal interests,
    pending a land title claim.

[497]

As demonstrated by the
    above authorities, duties that flow from the honour of the Crown are contextual
    and impose a heavy obligation on the Crown.
[423]
When the Crown is implementing a constitutional obligation to Aboriginal
    people, the honour of the Crown requires it to: (1) take a broad and purposive approach
    to the interpretation of the promise; and (2) act diligently to fulfill it.
[424]

(2)

The Crowns Obligation to Honourably and Diligently Implement the
    Robinson Treaties

[498]

The Robinson Treaties
    affirmed the Crowns desire to deal liberally and justly with Her Majestys
    subjects and promised to augment the annuity to £1 per person if the lands
    proved fruitful. It held out the promise of further augmentation, should Her
    Majesty be graciously pleased to so order. As the Superior Plaintiffs put it,
    the Crown made a promise to act graciously.

[499]

At a minimum, the
    Treaty promises, together with the honour of the Crown and principles of
    reconciliation, require the Crown to turn its mind from time to time to
    consider an increase in the amount of the annuity in excess of £1. The Crown
    has plainly failed to do so for 150 years since the one and only increase in
    1875.

[500]

This case goes well
    beyond the circumstances of
Marshall
,
Haida Nation
and
Manitoba
    Metis
. Even though both Canada and Ontario acknowledge that the annuity
    should be augmented in one manner or another, no steps have been taken to do
    so. There is no evidence that after 1875 the Crown ever turned its mind to a
    further increase in the annuity. The Crowns refusal to exercise its discretion
    to augment the annuities, even while recognizing that their purchasing power
    has been gutted by persistent inflation, is a clear failure to diligently
    implement the Robinson Treaties promise.

[501]

As noted earlier, it
    has been suggested that historical treaties need to be renegotiated, to reflect
    a modern understanding of the treaty relationship, with a view to renewal and
    reconciliation. 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.
[425]

[502]

In entering into the
    Robinson Treaties the Crown expressly undertook to revisit its promises and to
    refresh the annuities, where possible, to address both sides contemporary
    needs and interests in relation to the treaty lands.

[503]

The trial judge
    rejected Ontarios submission that the honour of the Crown gave the Crown
    unfettered discretion about whether to increase the annuities. She found that
    in light of the Crowns neglect of the Treaty promise for over a century and a
    half, the court had the authority and the obligation to impose specific and
    general duties on the Crown.
[426]

[504]

We respectfully agree
    with this conclusion.

I.

Disposition

[505]

For these reasons, we
    would grant judgment in the following terms:

·

declaring that the Crown is under an obligation to turn its mind
    from time to time to determine whether the £1 ($4) per person soft cap on the
    Treaty annuities can be augmented, having regard to the net Crown
    resource-based revenues from the Treaty territories and without incurring loss
    (the augmentation promise);

·

declaring that the augmentation promise is a Treaty right,
    recognized and affirmed by s. 35 of the
Constitution Act, 1982
;

·

declaring that the Crown is required to diligently implement the
    augmentation promise and is required to periodically engage in a process, in
    consultation with the First Nation Treaty parties, to determine the amount of
    such augmentation; and

·

declaring that, in fulfilling these obligations, the Crown is
    subject to the duties flowing from the honour of the Crown.

[506]

We would direct the
    trial judge to invite further submissions from the parties, before undertaking
    Stage Three, concerning the implementation of the augmentation promise,
    including:

·

the frequency with which the Crown is required to turn its mind
    to the augmentation promise;

·

the considerations to be taken into account in determining
    whether the Crown can increase the annuities without incurring loss, including
    the extent to which the Crown is entitled to take into account its other
    obligations and expenditures, both within and outside the Treaty territories;

·

the calculation of the amounts, if any, by which the Crown should
    have increased the annuities from time to time; and

·

the damages resulting from the Crowns breach of the augmentation
    promise.

[507]

We would remit the
    matter of the Huron Plaintiffs costs for the Stage One proceedings to the
    trial judge for reconsideration in accordance with the reasons of Lauwers and
    Pardu JJ.A. We would dismiss the Stage Two appeal for the reasons of Hourigan
    J.A. and award costs of the appeals in the manner set out in the joint reasons.

G.R. Strathy C.J.O.

David Brown J.A.

Hourigan J.A.:

A.

Introduction

[508]

I concur with the
    reasons of Lauwers and Pardu JJ.A. on the issues of costs, indexing, the honour
    of the Crown, Crown discretion and remedies. While I also agree with their
    conclusion on the trial judges interpretation of the Robinson Treaties, like
    Pardu J.A., I do so on the basis that her interpretation was free from palpable
    and overriding error and contained no extricable legal errors.

[509]

In addition, I issue these reasons to address: (1) whether the
    appropriate standard of review when considering an appeal about the
    interpretation of a historical Aboriginal treaty is palpable and overriding
    error or correctness; (2) whether the trial judge erred in finding that Canada
    and Ontario owe the Huron and Superior Plaintiffs a fiduciary duty regarding
    the implementation of the augmentation clauses in the Robinson Treaties; (3)
    whether Ontario can assert a defence of Crown immunity with respect to the
    Huron and Superior Plaintiffs breach of fiduciary duty claims; and (4) whether
    the claims for breach of Treaty are prescribed by the former
Limitations Act
(the 1990
Limitations Act
).
[427]


[510]

Regarding the
    appropriate standard of review in treaty interpretation cases, the appellate
    jurisprudence in Canada has created two distinct lines of authority. On one
    side, there is case law that regards treaty interpretation as akin to
    contractual analysis, and that uses a standard of palpable and overriding error
    to review lower courts decisions. This approach finds support in the seminal
    decision of
Sattva
.
[428]
There, the Supreme Court found that matters of contractual interpretation
    generally raise questions of mixed fact and law because the principles of
    contractual interpretation must be applied to the words of the written
    contract, considered in light of the factual matrix.
[429]
Since contract and treaty interpretation involve analogous (though not
    identical) considerations, subsequent cases have reasoned that appellate courts
    should adopt a less stringent standard of review, i.e., a standard of palpable
    and overriding error, when interpreting historical Aboriginal treaties.

[511]

On the other hand,
    there is a line of appellate authority (primarily pre-
Sattva
) holding
    that treaties are of a different qualitative nature than contracts. These cases
    suggest that because of the importance of treaty cases and their constitutional
    implications, appellate courts should review lower court decisions on a
    standard of correctness.

[512]

There is merit in both
    positions. Aboriginal treaties are important. They represent a solemn exchange
    of promises between the Crown and Indigenous peoples. In many parts of Canada,
    they formed the basis for peace and the expansion of European settlement.
[430]
They also continue to provide a framework for an ongoing relationship between
    the Crown, Indigenous peoples, and Canadian society at large. To that end,
    unlike the decisions routinely made by courts in contract cases, treaty
    interpretation requires judges to think about how the treaties at issue will
    define legal obligations for generations to come. However, the courts also must
    be mindful of the circumstances that surrounded the formation of Aboriginal
    treaties. Historical Aboriginal treaties were drafted and signed in drastically
    different circumstances than the modern Aboriginal treaties we see today. As a
    result, to adequately understand the relevant context and properly interpret
    the parties intentions, the factual matrix becomes exceedingly important in
    historical Aboriginal treaty cases.

[513]

To determine the
    appropriate standard of review, it is thus important to analyze the central
    role that historical context plays in determining both the factual and legal
    issues underlying treaty interpretation. Further, it is essential to carefully
    consider the interpretative process undertaken by trial judges in historical
    Aboriginal treaty cases. When the role of historical context and the nature of
    the interpretive process are considered, it becomes evident that only a
    standard of review of palpable and overriding error provides the appropriate
    level of deference to trial courts.

[514]

Regarding fiduciary
    duty, the trial judge found that the Crown owes an
ad hoc
fiduciary
    duty, but not a
sui generis
fiduciary duty, to the Treaty
    beneficiaries in the implementation of the augmentation clauses.

[515]

In my view, the trial
    judge erred in law in finding the existence of an
ad hoc
fiduciary
    duty in the circumstances. Two parts of her analysis render her decision
    unsustainable. First, the trial judge significantly expanded the scope of the
ad
    hoc
fiduciary duty between the release of her reasons and the settling of
    the judgments in these cases. It was transformed from a narrow and procedural
    duty into a broad-based and substantive obligation on the Crown to implement
    the augmentation clauses. Second, the trial judge made a legal error by
    concluding that the Crown agreed to act solely in the best interests of the
    Treaty beneficiaries when upholding the Treaty augmentation clauses. This was
    not legally possible because it would put the Crown, which is also responsible
    for Canadian society as a whole, in an inevitable conflict of interest.

[516]

I would not interfere
    with the trial judges finding regarding the
sui generis
fiduciary
    duty as I see no error in her analysis, and the ruling was consistent with
    binding precedent. Further, courts must be cautious in expanding the scope of
    the
sui generis
fiduciary duty where the actions of the Crown are more
    in the nature of a public law duty rather than a private law duty.

[517]

Ontario also asserts
    Crown immunity with respect to the claims for breach of fiduciary duty. It does
    not rely on Crown immunity in defence of any other aspect of the Huron and Superior
    Plaintiffs claims. Given my conclusion that there is no fiduciary duty owed in
    the circumstances of this case, it is unnecessary to decide whether Crown
    immunity is available, and I decline to do so.

[518]

Regarding the 1990
Limitations
    Act
, the Crown appeals the decision of the trial judge, which found that
    the provisions of the legislation are unavailable with respect to the breach of
    Treaty claims. Ontario argues that the pre-2002 Treaty claims are
    statute-barred because one of the following limitation periods apply: (1) the
    claims are actions for contract

without

specialty, subject to

a six-year limitation period

under s. 45(1)(g); (2) the

claims

are

actions

upon
    a specialty, subject to a twenty-year limitation period under s. 45(1)(b); or
    (3) the claims are actions of account, subject to a six-year limitation period
    under s. 46.

[519]

The Crowns
    submissions regarding the 1990
Limitations Act
are without merit.
    Limitation periods are supposed to provide certainty to litigants regarding
    their legal rights and liabilities. There is nothing in the 1990
Limitations
    Act
that explicitly references treaty claims
.
Had the legislature
    intended to target treaty claims, it would have been a straightforward task to
    do so, either through an explicit reference or the inclusion of a basket clause
    that caught all other causes of action not explicitly mentioned in the statute.

[520]

In any event, I do not
    accept the thrust of the Crowns submission that treaties are synonymous with
    contracts. While treaties and contracts may share certain common features, the
    weight of the authority from the Supreme Court is that they are very different
    legal instruments. Similarly, a specialty contract shares little or no
    commonality with a treaty. Finally, as contemplated in the 1990
Limitations
    Act
, an action of account is wholly inapplicable to the Robinson Treaties.

B.

Analysis

(1)

Standard of Review

(a)

Historical Aboriginal Treaties

[521]

Treaties between
    Aboriginal people and the Crown are generally divided into historical
    treaties, negotiated prior to 1921, and modern treaties, negotiated after
    1973.
[431]
The written terms of historical Aboriginal treaties, which surrendered large
    tracts of land to the Crown, are understood to be significantly less favourable
    to Indigenous parties than those contained in modern treaties.
[432]
The Robinson Treaties, signed in 1850, are historical in nature. At the outset
    of my analysis, it is therefore essential to outline the differences between
    modern Aboriginal treaties and historical Aboriginal treaties in order to
    ascertain the standard of review applicable to these cases.

[522]

Historical Aboriginal
    treaties were negotiated at the demographic low point for Indigenous peoples,
    which coincided with the relative lack of Indigenous economic, military, and legal
    power.
[433]
In order to ensure that land and resources were not taken without their
    permission, and to protect their communities from European-borne diseases and
    starvation, Aboriginal people entered treaty-making processes with reduced
    bargaining power.
[434]


[523]

Historical Aboriginal
    treaties were often negotiated quickly,
[435]
with little or no legal representation for the Indigenous signatories.
[436]
They were intended to record the agreement reached orally between the parties,
    but were relatively brief documents with lofty terms of high generality that
    did not always include the full extent of the Crowns promises to Indigenous
    signatories.
[437]
Further, the differences in language, culture, and worldview led to divergent
    understandings of what the parties agreed to in each treaty.
[438]
The written text of historical Aboriginal treaties may thus not reflect the
    true intent or understanding of Indigenous signatories.
[439]
As a result, cases like the ones before this court raise questions about
    whether the written text represents the entirety of the Crowns obligations.

[524]

By contrast, modern
    Aboriginal treaties were negotiated in a

period of improved Indigenous
    bargaining power.
[440]
Modern Aboriginal treaties are long and complex documents that have been
    carefully drafted and reviewed by all parties legal counsel over several
    years. They are usually ratified by a majority of community members after
    substantial consultation and engagement. Unlike the historical Aboriginal
    treaties, they also contain amending provisions that recognize the need for
    continued dialogue between the parties. The consequences of such an inclusive
    and iterative process are that once a modern Aboriginal treaty is concluded,
    the parties are more likely to have a similar understanding of what has been
    agreed to, and the written text of the document more accurately captures the
    key terms of their agreement.
[441]


[525]

The interpretation of
    modern Aboriginal treaties can still give rise to disagreement. However, the
    context in which they are negotiated, and the comprehensiveness of the document
    produced, mean that the circumstances a court must consider to identify the
    parties common intention and to determine an appropriate interpretation is
    vastly different than historical Aboriginal treaties. In
Beckman
, Binnie
    J. explained that:

[T]he distinction lies in the relative precision and
    sophistication of the modern document. Where adequately resourced and
    professionally represented parties have sought to order their own affairs, and
    have given shape to the duty to consult by incorporating consultation
    procedures into a treaty, their efforts should be encouraged and, subject to
    such constitutional limitations as the honour of the Crown, the Court should
    strive to respect their handiwork.
[442]

[526]

Consequently, modern
    Aboriginal treaties warrant greater deference to their text than historical
    Aboriginal treaties.
[443]


[527]

Historical Aboriginal
    treaties should be interpreted in light of the contexts in which they were
    signed, and that interpretation must be both liberal and dynamic so as to avoid
    the freezing of rights, while any ambiguity is to be resolved in favour of the
    Aboriginal signatories.
[444]
This requires courts to go beyond the facial meaning of the text and to examine
    any evidence of how the parties understood the terms at the time the treaty was
    signed. Courts must undertake an extensive analysis of the record and witness
    testimony in order to make factual findings that will provide a foundation for
    them to apply the principles of treaty interpretation and arrive at a
    conclusion best reconciling the interests and intentions of both parties.

[528]

As I will elaborate
    below, it is precisely the scope of the fact-finding exercise underpinning the
    interpretation of historical Aboriginal treaties that requires appellate
    courts, upon review, to afford deference to lower courts and apply a standard
    of palpable and overriding error.

(b)

The Case for a Correctness Standard

[529]

Ontario relies on
Van
    der Peet
,
[445]
Marshall
,
[446]
and
Caron
[447]
to assert that the standard of review applicable to the interpretation of
    historical Aboriginal treaties is correctness. According to Ontario, the
    interpretation of treaties is a legal issue, even when informed by findings of
    fact.

[530]

In
Van der Peet
,
    the appellant was charged with the offence of selling fish that she had caught
    under the authority of an Indian food fish license. The appellant defended the
    charges on the basis that she had exercised an existing Aboriginal right to
    sell fish, and as a result, the relevant section of British Columbias fishery
    regulations
[448]
violated s. 35(1) of the
Constitution Act, 1982
.

[531]

Lamer C.J. stated that
    no deference is owed to legal inferences or conclusions drawn from the trial
    judges findings of fact. The relevant paragraph reads as follows:

In the case at bar, Scarlett Prov. Ct.
    J., the trial judge, made findings of fact based on the testimony and evidence
    before him, and then proceeded to make a determination as to whether those
    findings of fact supported the appellants claim to the existence of an
    aboriginal right.
The second stage of Scarlett Prov. Ct. J.s analysis  his
    determination of the scope of the appellant's aboriginal rights on the basis of
    the facts as he found them  is a determination of a question of law which, as
    such, mandates no deference from this Court. The first stage of Scarlett Prov.
    Ct. J.s analysis, however  the findings of fact from which that legal
    inference was drawn  do mandate such deference and should not be overturned
    unless made on the basis of a palpable and overriding error.
This is
    particularly the case given that those findings of fact were made on the basis
    of Scarlett Prov. Ct. J.s assessment of the credibility and testimony of the
    various witnesses appearing before him.
[449]

[532]

The Supreme Court
    ultimately showed deference to the trial judge's findings of fact but applied a
    standard of correctness to his subsequent analysis of the scope of the
    appellants Aboriginal rights. A correctness standard was similarly imposed in
    several other historical Aboriginal treaty cases before
Sattva
.
[450]

[533]

Ontario rejects the
    argument that this jurisprudences precedential value has been called into
    question due to the Supreme Courts decision in
Sattva
. It submits that
    treaties are not comparable to everyday commercial contracts, and that treaty
    relationships between the Crown and Aboriginal peoples create public law and
    are of importance to individuals and communities beyond a particular case. That
    argument seems to find support in a recent article by Professor Janna
    Promislow:

Serving the ends of justice in the treaty interpretation
    context, however, is more complex than the interpretation of contracts, due to
    the historical nature of the agreements and the constitutional character of the
    moments of agreement  and because the foundational values behind protecting
    historic treaty rights are arguably less understood and more contentious than
    the values behind protecting freedom of contract.
[451]

[534]

In any event, Ontario
    submits that the Supreme Court has not created a single standard of review
    applicable to all contracts. For example, in
Ledcor
, the court held
    that when faced with standard form contracts affecting a wide range of parties,
Sattva
does not apply, and the case should be reviewed on a standard of
    correctness.
[452]

[535]

Ontario also argues
    that in
Caron
, which was released post-
Sattva
, the Supreme
    Court affirmed its earlier jurisprudence on the applicability of the
    correctness standard of review in treaty interpretation cases. The Supreme
    Court noted:

While we take no issue with the factual findings of the
    provincial court judge regarding the negotiations between the delegates and
    Canada, we disagree with his legal conclusion that the negotiations resulted in
    a pact with Canada to establish legislative bilingualism in all of the annexed
    territories (para. 354). In this respect,
there is a helpful distinction
    drawn in Aboriginal rights jurisprudence between a trial judges findings of fact
    on historical matters, which are entitled to deference, and the legal
    inferences or conclusions that a trial judge draws from such facts, which are
    not.
As Lamer C.J. explained in
R. v. Van der Peet
, [1996] 2
    S.C.R. 507, [the trial judges] determination of the scope of the appellants
    aboriginal rights on the basis of the facts as he found them  is a
    determination of a question of law which, as such, mandates no deference from
    this Court (para. 82; see also
R. v. Marshall
, [1999] 3 S.C.R. 456,
    at para. 18; and
R. v. Sappier
, 2004 NBCA 56, 273 N.B.R. (2d) 93, at
    para. 76). In our view, the same distinction applies with respect to the
    historical factual findings of the provincial court judge in this case, and the
    legal inferences he draws on the basis of these facts.
[453]

[536]

In another recent
    post-
Sattva
case,
Fort McKay First Nation
, the Court of
    Appeal of Alberta took an unequivocal stance on the standard of review
    applicable to treaty interpretation. The court subscribed to the view that all matters
    of treaty interpretation are subject to a standard of correctness.
[454]


[537]

In summary, Ontario
    submits that treaty interpretation cases, both before and after
Sattva
,
    call for a correctness standard of review. It relies on the importance of
    treaties and the broad impact of decisions interpreting treaties as justifying
    this more stringent standard of review.

(c)

The Case for a Deferential Standard

[538]

The Huron Plaintiffs
    argue that historical Aboriginal treaty interpretation is a matter of mixed
    fact and law, and reviewable on the standard of palpable and overriding error.
    In support of this submission, they draw an analogy to contracts. In the pre-
Sattva
jurisprudence, there is authority for the proposition that Aboriginal treaties
    should be treated as analogous to contracts. For example, in
Badger
,
    Cory J. noted that [t]reaties are analogous to contracts, albeit of a very
    solemn and special, public nature.
[455]

[539]

Sattva
represented a sea change in the approach to the standard of review in
    contractual interpretation cases. In that case, Rothstein J. recognized that
    the traditional view in England and Canada had been that the standard of review
    on an appeal from a lower court decision involving the interpretation of a
    contract was correctness. However, he noted that the law of contractual
    interpretation in Canadian courts had developed to the point where it was
    recognized that the meaning of contractual terms is often derived from
    contextual factors  also known as the factual matrix  that must inform the
    analysis.

[540]

Further, Rothstein J.
    observed that the exercise of applying the principles of contractual
    interpretation to the facts and words of an agreement is closer to a question
    of mixed fact and law than a question of law. He emphasized that determining the
    parties objective intentions to a contract is a fact-specific goal,
    informed, in part, by a consideration of the surrounding circumstances known
    to the parties at the time of formation of the contract.
[456]

[541]

Another critical
    policy rationale for the imposition of a more deferential standard of review
    relied on by Rothstein J. was that in most cases, the interpretation of a
    contract would have no impact beyond the interests of the parties to the
    particular dispute. On this point, he reasoned as follows:

[O]ne central purpose of drawing a distinction between
    questions of law and those of mixed fact and law is to limit the intervention
    of appellate courts to cases where the results can be expected to have an
    impact beyond the parties to the particular dispute. It reflects the role of
    courts of appeal in ensuring the consistency of the law, rather than in
    providing a new forum for parties to continue their private litigation. For
    this reason,
Southam
identified the degree of generality (or
    precedential value) as the key difference between a question of law and a
    question of mixed fact and law. The more narrow the rule, the less useful will
    be the intervention of the court of appeal.

Similarly, this Court in
Housen
found that deference
    to fact-finders promoted the goals of limiting the number, length, and cost of
    appeals, and of promoting the autonomy and integrity of trial proceedings.
    These principles also weigh in favour of deference to first instance
    decision-makers on points of contractual interpretation. The legal obligations
    arising from a contract are, in most cases, limited to the interest of the
    particular parties. Given that our legal system leaves broad scope to tribunals
    of first instance to resolve issues of limited application, this supports treating
    contractual interpretation as a question of mixed fact and law.
[457]

[542]

It is important to
    note that Rothstein J. recognized that it might be possible to identify an
    extricable question of law from within what was initially characterized as a
    question of mixed fact and law. He cited examples, including the application of
    an incorrect principle, the failure to consider a required element of a legal
    test, or the failure to consider a relevant factor.
[458]
However, he warned that courts should be cautious in identifying legal errors
    in disputes over contractual interpretation. He stated that the circumstances
    in which a question of law can be extricated from the interpretation process
    will be rare.
[459]

[543]

The Huron Plaintiffs
    submit that while historical Aboriginal treaties are not contracts, their
    interpretation requires the courts to look at the historical context and the
    parties intentions in a manner at least as inherently fact specific as
    contractual interpretation.

[544]

Like the Huron
    Plaintiffs, the Superior Plaintiffs submit that the rationale for the
    deferential standard of review in
Sattva
applies with equal force to
    the interpretation of historical Aboriginal treaties. The Superior Plaintiffs,
    however, go a step further than the Huron Plaintiffs and assert that the
    interpretation of the Robinson Treaties will have no precedential value because
    they are the only ones in Canada to contain augmentation clauses. Given what
    they believe to be the limited precedential value of this case, the Superior
    Plaintiffs argue that the trial judges interpretation should attract
    significant deference on appeal unless there is an extricable error of law.

[545]

The Superior
    Plaintiffs draw an analogy between the interpretation of the Robinson Treaties
    and the interpretation of the Indian Residential School Settlement Agreement in
Fontaine (SCC)
.
[460]
In
Fontaine (SCC)
, the courts decision would have had a broad impact
    affecting thousands of people but was not subjected to a higher standard of
    review. The Superior Plaintiffs similarly argue that although the
    interpretation of the Robinson Treaties will have significant implications for
    many people, the fundamental issue for the courts to address is the common
    intention of the Treaties signatories, and thus, the question is one of mixed
    fact and law.

[546]

Both the Huron and
    Superior Plaintiffs cite
West Moberly
, a recent case from the Court of
    Appeal for British Columbia that examined the standard of review in historical
    Aboriginal treaty cases.
[461]
This appeal concerned the interpretation of a metes and bounds clause in
    Treaty 8 that described a tract of land.

[547]

The plaintiffs in
West
    Moberly
applied for a declaration that the tracts western boundary
    referred to the height of land along the continental divide between the Arctic
    and Pacific watersheds. The province counterclaimed. It sought a declaration
    that the disputed phrase referred to the line of the watershed within the Rocky
    Mountains as those mountains were understood to be situated in 1899 at the time
    of the treaty signing. The trial judge granted the declaration requested by the
    plaintiffs. The province appealed the order on the grounds that: (1)
    declaratory relief was unavailable in the circumstances; and (2) the trial
    judge erred in his interpretation of the relevant provision.

[548]

In dismissing the
    appeal, the majority, whose decision was authored by Bauman C.J.B.C., briefly
    considered the issue of the standard of review. The majority noted:

It is common ground that no deference is owed to judicial
    conclusions stemming from legal error. A correctness standard of review applies
    to a finding of the trial judge that can be traced to an error in his or her
    characterization of the legal standard:
Housen
, at para. 33. Similarly,
    no deference is owed to the legal conclusions a trial judge makes by applying
    the law to a historical record:
Caron v. Alberta
, 2015 SCC 56 at para.
    61.
[462]

[549]

In dissenting reasons,
    Smith J.A. undertook a more detailed analysis of the issue and concluded:

In my view, the principles outlined in
Sattva
provide
    guidance in the approach to be taken to the standard of review with respect to
    treaty interpretation. Contract and treaty interpretation involve analogous
    (though not identical) considerations. Like contract interpretation, treaty
    interpretation involves the application of legal principles of interpretation
    to the text of the written treaty, considered in light of the factual matrix.
    For historical treaties, that matrix includes the historical and cultural
    context of the time. Thus, the standard of review that applies to treaty
    interpretation is overriding and palpable error unless the error alleged
    involves an extricable question of law.
[463]

[550]

The Huron and Superior
    Plaintiffs rely on Smith J.A.s comments in support of their position that the
    standard of review is palpable and overriding error.

[551]

In summary, the Huron
    and Superior Plaintiffs submit that the factual matrix plays an essential role
    in the interpretative exercise of non-standard form contracts and historical
    Aboriginal treaties. Therefore, for the same reasons articulated by the Supreme
    Court in
Sattva
, they argue that the trial judges decision should be
    subject to a more deferential standard of review.

(d)

A New Approach

[552]

As I stated at the
    outset of these reasons, I am of the view that a new approach should be taken
    on the issue of standard of review as it relates to the interpretation of
    historical Aboriginal treaties. I will first consider Ontarios submissions in
    favour of a correctness standard of review before I explain what the new
    approach should be.

(i)

Ontarios Arguments Are not Persuasive

[553]

Ontarios plea that a
    higher standard of review should be imposed because of the Treaties
    significance is not persuasive. That is not the way standard of review analysis
    is supposed to operate. Courts do not have differing standards dependent on the
    quantum of damages at stake or the number of people impacted by the decision. A
    breach of contract judgment in a dispute between two parties is not entitled to
    less deference than a similar decision in a class proceeding that impacts
    thousands of class members. As Strathy C.J.O. stated in
Fontaine (ONCA)
:

The question is not whether the decision will impact many
    people, but whether it will have precedential value, in the sense that it
    provides guidance to adjudicators or resolves an issue that could arise in
    future litigation. The fact that the outcome of the interpretation of the
    agreement will affect many  indeed many thousands  of claimants, is not, of
    itself, a reason to elevate the standard of review to correctness.
[464]

[554]

Deference is also
    applied to the fact-finding of judges in a myriad of circumstances that result
    in very serious consequences. For example, in criminal cases, factual findings
    critical in determining the guilt or innocence of an accused, or the
    appropriate sentence, are afforded significant deference on appeal. It is
    therefore an unconvincing argument to state that the standard of review should
    be higher for treaty interpretation cases because the consequences flowing from
    the decisions are more significant.

[555]

The jurisprudence is
    clear, however, that whether a decision has precedential value will be a
    significant factor in determining the appropriate standard of review. The
    purpose of the distinction between questions of mixed fact and law and
    questions of law is, as a matter of judicial economy, to limit an appellate
    courts power to interfere with the fact-finders interpretation of a contract,
    given that in most cases, the interpretation will have no impact beyond the
    interests of the parties to the particular dispute.
[465]

[556]

Wagner J. (as he then
    was) described the distinction between cases with and without precedential
    value this way in
Ledcor
:

Contractual interpretation is often the pure application of
    contractual interpretation principles to a unique set of circumstances. In such
    cases, the interpretation is not of much interest to judges and lawyers in the
    future because of its utter particularity. These questions of contractual
    interpretation are appropriately classified as questions of mixed fact and law,
    as the Court explained in
Sattva
.

However, the interpretation of a standard form contract could
    very well be of interest to judges and lawyers in the future. In other words,
    the interpretation itself has precedential value. The interpretation of a
    standard form contract can therefore fit under the definition of a pure
    question of law, i.e., questions about what the correct legal test is:
Sattva
,
    at para. 49;
Southam
, at para. 35. Establishing the proper
    interpretation of a standard form contract amounts to establishing the correct
    legal test, as the interpretation may be applied in future cases involving
    identical or similarly worded provisions.
[466]

[557]

It is essential to
    recognize that what the Supreme Court discussed in
Ledcor
was standard
    form insurance contracts, which contained identical or nearly identical
    contractual language as used in many other insurance policies. In the cases at
    bar, the interpretation of the agreements has minimal precedential value. As
    counsel for the Superior Plaintiffs point out, there are no other similar
    augmentation treaties extant in Canada.

[558]

I am also not
    persuaded that there should be a distinction, as suggested in
Van der Peet
,
Marshall
, and
Caron
, between findings of historical facts
    (reviewed on a deferential standard) and the application of those findings to
    draw appropriate legal inferences (reviewed on a correctness standard). In a
    case where the primary goal of the analysis is to ascertain the signatories
    intentions for executing a treaty, the determination of the historical facts
    and the legal consequences of those findings are usually two sides of the same
    coin. Once the trial judge has determined the parties intention, there is very
    little work remaining; the legal consequences flow directly from the
    fact-finding. It is artificial to suggest that there is a two-step process and
    that different review standards should apply to each step.

[559]

Further, in my view,
Van
    der Peet
,
Marshall
, and
Caron
do not stand for the
    proposition that historical Aboriginal treaties are to be reviewed on a
    correctness standard. It must be noted that both
Van der Peet
and
Marshall
were decided prior to
Housen
, the leading case on the standards of
    appellate review.
[467]
In that case, the court differentiated between errors of law that are subject
    to a correctness standard, and errors of fact or mixed fact and law that are
    subject to a palpable and overriding error standard.
Van der

Peet
and
Marshall
are examples of cases decided on extricable legal errors
     the former case involved the establishment and application of the test for
    Aboriginal rights, whereas in the latter case, the Supreme Court was required
    to give effect to a treaty interpretation principle that the trial judge had
    ignored. Finally,
Caron
was not a case about Aboriginal or treaty
    rights.

[560]

For these reasons, I
    would reject Ontarios arguments for a standard of correctness.

(ii)

Appellate Review of Historical Aboriginal Treaty Interpretation

[561]

The question that
    remains is whether historical Aboriginal treaties should be subject to a lower
    standard of review by reason of their similarity to contracts and should be fit
    under the umbrella of the
Sattva
line of authority.

[562]

I recognize that there
    is jurisprudence where appellate courts have suggested that Aboriginal treaties
    are akin to contracts. However, as Michael Coyle points out:

[T]he doctrines of contract law did not evolve in the context
    of arrangements intended to endure for generations and were not formulated to
    resolve the kinds of disputes that are likely to arise in such a long-term
    relationship. Conceiving of treaties mainly through the principles of domestic
    contract law would fail to account for either the web of relational expectations
    that infused the treaty-making process or the necessarily unforeseeable and
    evolving circumstances through which the parties intended to maintain their
    treaty relationship. Perhaps most importantly, to adopt an approach based
    solely on Canadas domestic law of contracts would overlook the fundamental
    character of treaties, namely that they are the product of an encounter between
    two separate legal orders, Indigenous and non-Indigenous. Since at least 1985,
    with the Supreme Court of Canadas
Simon
decision, Canadian law has
    acknowledged that treaties between the Crown and First Nations are unique legal
    arrangements to be governed by a set of legal principles adapted to their
    unique nature.
[468]

[563]

I would thus approach
    the issue in a slightly different manner. In my view, the reasons why the
    analysis of historical Aboriginal treaties should be subject to a lower
    standard of review are twofold: (1) the critical nature of historical context
    in the exercise; and (2) the process that trial courts engage in when
    undertaking a historical Aboriginal treaty analysis.

(i)

The Historical Context

[564]

The historical context
    relevant to treaty interpretation includes not only the political, economic,
    and social circumstances that the Crown and the Indigenous parties had faced in
    or around the time of the documents signing. The historical context also refers
    to how Indigenous communities would have conceptualized their relationships to
    one another, the land, and European society, and how the Crown would have
    viewed the same. The parties beliefs, legal orders, and desires for the future
    would have provided the framework with which they each approached and entered
    into a given treaty. It must consequently be stressed that this historical
    context is integral to the exercise of Aboriginal treaty interpretation, which
    is fundamentally about the determination of the parties rights as was intended
    by the original signatories at the time of the documents signing.

[565]

As Julie Jai notes,
    historical Aboriginal treaties were meant to create a relationship between two
    culturally distinct groups so that they could peacefully co-exist. However,
    there were gaps in language, worldview, and other factors that produced
    divergent understandings of what was agreed upon between the parties. In
    addition, the Aboriginal signatories often did not have legal representation
    and did not appreciate the fact that they were giving up their rights for
    perpetuity.
[469]
The exercise of seeking common intent in treaty interpretation would be
    superfluous and misleading if the courts did not concern themselves with the
    manner in which each partys apparent assent was obtained.
[470]
In other words, when courts examine historical Aboriginal treaties that were
    negotiated quickly, with power imbalances, and often in a language foreign to
    Aboriginal peoples, the task of treaty interpretation cannot be accomplished
    without a detailed understanding of the broader historical context.

[566]

I would also observe
    that our courts interpret these historical treaties in the 21st century, where
    we recognize reconciliation as an animating element of ongoing Aboriginal-Crown
    relationships. To that end, the Crown must perform its treaty obligations in a
    manner that pursues the purpose behind the promise.
[471]
It must also ensure that its dealings do not render the treaty an improvident
    arrangement for the Aboriginal signatories. This substantive legal
    accountability is not possible if the courts are restricted to an
    interpretation based on the lean and often vague vocabulary of historic treaty
    promises.
[472]
Reconciliation requires the courts to view each historical treaty in the
    context of the facts that come from the vast and unique array of evidentiary
    sources presented by the parties.

(ii)

The Process of Trial Courts in Interpreting Historical Aboriginal
    Treaties

[567]

Regarding the process
    followed by trial judges, the Huron and Superior Plaintiffs analogy to the
    factual matrix in contract cases is not entirely apt. In a historical
    Aboriginal treaty case, the examination of the surrounding factual
    circumstances analysis goes well beyond what is typical in a contract case.
    Usually, a court tasked with interpreting a contract starts with the words of
    the agreement, and where there is ambiguity as to their meaning, applies the
    evidence adduced at trial to give the necessary context to the words chosen by
    the parties. This generally involves
viva voce
evidence from one or
    more of the participants in the contract negotiation. Often, the trial judge is
    also called upon to review the contracting parties communications. An analysis
    of a contracts factual matrix, while important, is thus not a particularly
    complex or novel exercise. It is consistent with the fact-finding function that
    trial courts engage in every day across the country. To put it colloquially, it
    is the bread and butter of trial courts.

[568]

Contrast this typical
    process with the far more extensive exercise a trial court engages in when
    interpreting a historical Aboriginal treaty. Courts recognize that the text of
    historical Aboriginal treaties often reflect the views and biases of the
    powerful and that to understand the truth, they must go well beyond the
    words of a single agreement.
[473]
A finding of ambiguity in the treaty language is not necessary to have regard
    to extrinsic evidence.
[474]
The extrinsic evidence helps the courts see how the parties understood the
    terms of the treaty, and such an appreciation is of assistance in giving
    content to the term or terms.
[475]
Consequently, in a historical Aboriginal treaty case, the surrounding
    circumstances of the treaty are as important as the documents text. The
    significance of the factual matrix is heightened, and a court must undertake an
    extensive review of the historical circumstances to interpret the treaty
    properly.

[569]

The cases at bar serve
    as good examples of the nature of that process. There was, of course, no direct
    evidence from any party who was present during the negotiation and execution of
    the Robinson Treaties. The trial judge accepted evidence from 11 experts and
    heard from various Elders and Chiefs. She reviewed approximately 30,000 pages
    of historical documents, including the Treaties themselves, reports, maps and
    diaries, and a similarly lengthy volume of secondary source material. To
    properly understand the parties intentions, she had to put the Robinson
    Treaties in their historical context. This meant reviewing the evolving nature
    of the relationship between Aboriginal peoples and Europeans over several
    decades. It also included a review of the conduct of the parties after the
    execution of the Treaties. The trial took 67 sitting days and was followed by
    closing submissions, which lasted another 11 days.

[570]

In a case centred on
    the interpretation of a historical Aboriginal treaty, the trial judge is called
    upon to conduct a process akin to a judicial inquiry. It is an extensive
    analysis where the judge is acting both as judicial officer and historian. Like
    the historian, the trial judge must sort through, piece together, and try to
    make sense of a diverse array of source material that usually illuminates the
    incomplete, tenuous, and questionable nature of the parties agreement. In
    order to resolve the parties dispute in their judicial role, however, they
    must go a step further and make factual inferences to fill the inevitable gaps
    in the record. Experts present evidence to help the trial judge in drawing
    those inferences, and the trial judge must evaluate the weight to give those
    opinions against the record of source documents. There are hard historical
    facts that may be revealed in this process, but generally inferences and opinions
    outnumber those facts.

[571]

Where the court is
    engaged in drawing conclusions from competing interpretations of the historical
    record, it cannot be credibly argued that there is only one correct
    interpretation. This is because:

[T]reaties have a social life and generate a multiplicity of
    meanings, interpretations, expectations and hopes. Treaties have a social life
    insofar as they carry relational qualities, capacities and potentialities that
    concern and engage humans, institutions and the land. This is a social life
    that brings Indigenous and non-Indigenous regimes of value and historicity into
    coexistence and, therefore, into dialogue.



Once signed, treaties become key actors in the relationship
    between governments, industries, Indigenous people and the land; they play a
    major role in the formation, transformation and deployment of these
    relationships. Once ratified, treaties are the starting point of a
    relationship, not an end in themselves. Their future and deployment are fraught
    with potentialities, uncertainties and indeterminacy.
[476]

[572]

Ultimately, the study
    of history is not mathematics. It is all about context, perspective, and
    judgment. To use the words of the American writer, Thomas Flanagan, to properly
    understand a historical event, a historian must take that event and turn it in
    ones fingers until all the lights had played upon its surfaces.
[477]
A trial judge in a historical Aboriginal treaty case must do the same. They are
    required to consider the intention of the signatory parties from all perspectives
    and in light of the historical context.

[573]

A trial judge must
    work diligently to sift through the historical record and come to a conclusion
    that is sensible and in accord with the evidence. Where a trial judge
    undertakes that task with diligence, carefully considers the competing
    viewpoints, and weighs the evidence to reach an available conclusion without
    making a palpable and overriding error or an extricable legal error, an
    appellate court oversteps its proper role if it interferes and asserts its own
    conclusion. As McLachlin J. (as she then was; dissenting, but not on this
    point) stated in
Marshall
, 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.
[478]
In my view, it is not open to an appellate court to step in after the trial and
    declare that theirs is the only valid interpretation of the historical record.

[574]

Thus, the rationale
    for deference is much better established in a historical Aboriginal treaty case
    than in an ordinary contract case. This is especially true in light of the fact
    that a trial judges determination of the parties common intention often
    settles the legal issues. For example, in the cases at bar, the key
    determination to be made by the trial judge was the parties intention in
    inserting the augmentation clauses into the Robinson Treaties. Once she
    answered that question, very little legal analysis was required. It is
    therefore unhelpful to suggest that there are distinct stages to a trial
    judges analysis, each of which could be subject to different standards of
    review.

[575]

I also note that there
    must be some value placed in the trial process itself. Based on the Supreme
    Courts comments in
Housen
, we presume trial judges to be as competent
    as appellate judges in resolving disputes justly.
[479]
We further accept that trial judges are in a privileged position vis-à-vis
    their appellate counterparts to engage with the record, watch and listen to the
    parties, and make findings of fact, and that with repeated experience of
    carrying out this process, there comes expertise.
[480]
In the context of historical treaty interpretation, where reconciliation is the
    animating principle, the trial judges expertise and process should be
    especially respected.

[576]

Here, for example, the
    trial judge took extensive efforts to involve and hear from the Indigenous
    Treaty partners. She conducted the proceedings in various Indigenous
    communities, immersed herself in the teachings of these communities many
    knowledge keepers, and permitted Anishinaabe ceremony to come into the
    courtroom and the court process, through witnesses, counsel, and members of the
    First Nations. For this court to intervene not only undervalues the trial
    judges comprehensive process, but suggests that the involvement of the Treaty
    partners, particularly the Indigenous signatories, did not make the trial judge
    better situated to decide the case. That cannot be the intention of a treaty
    interpretation exercise meant to promote reconciliation.

[577]

In summary, I would
    find that the standard of review applicable to the trial judges analysis of
    the Robinson Treaties is palpable and overriding error. Extricable errors of
    law should be reviewed on a correctness standard.

(e)

Application of Legal Principles

[578]

In the present cases,
    the trial judge carefully considered the historical evidence and made extensive
    references to it in her judgment. Her interpretation of the Treaties was
    available to her, as it was well rooted in the evidence. It is free from
    palpable and overriding error or extricable legal error.

[579]

Ontarios complaints
    that the trial judge ignored relevant evidence are not borne out by an
    examination of the record. In reality, these arguments are directed to the
    degree of emphasis that the trial judge placed on various parts of the record.
    The weight given by a trial judge to individual pieces of evidence is a choice
    that is well within a trial judges discretion and is not properly the subject
    of appellate correction.

[580]

Based on the
    foregoing, I would find no basis for this court to interfere with the trial
    judge's interpretation of the Robinson Treaties.

(2)

Fiduciary Duty

(a)

Overview

[581]

There are two distinct
    types of fiduciary duty that may arise in the cases at bar. They were described
    by Wagner J. (as he then was), in
Williams Lake
as follows:

A fiduciary obligation may arise from the relationship between
    the Crown and Indigenous peoples in two ways. First, it may arise from the
    Crowns discretionary control over a specific or cognizable Aboriginal
    interest:
Manitoba Metis Federation
, at paras. 49 and 51;
Wewaykum
,
    at paras. 79-83;
Haida Nation
, at para. 18; T.R., at para. 180-81.
    Because this obligation is specific to the relationship between the Crown and
    Indigenous peoples, it has been characterized as a 
sui generis
 fiduciary
    obligation:
Wewaykum
, at para. 78;
Guerin
, at p. 385;
Sparrow
,
    at p. 1108. Second, a fiduciary obligation may arise where the general
    conditions for a private law
ad hoc
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:
Manitoba Metis Federation
, at para. 50;
Alberta
    v. Elder Advocates of Alberta Society
, 2011 SCC 24, [2011] 2 S.C.R. 261, at
    para. 36; T.R., at paras. 182 and 217.
[481]

[582]

The trial judge found
    that the Crown owes an
ad hoc
fiduciary duty, but not a
sui
    generis
fiduciary duty, to the Treaty beneficiaries regarding the
    augmentation clauses.
[482]
As I will explain in this section of my reasons, in reaching her conclusion
    regarding the
ad hoc
fiduciary duty, the trial judge made two
    significant legal errors in her analysis, which render her finding
    unsustainable.

[583]

First, there is an
    unresolvable discrepancy between the nature of the fiduciary duty identified in
    the trial judges reasons and the one found in her judgments. Somehow, the
    scope of the duty expanded significantly in the process of settling the
    judgments. In the reasons, the content of the fiduciary is limited to
    procedural obligations in implementing the augmentation clauses. However, in
    the judgments, the fiduciary duty applies to the entire process of the Crown
    making payments under these clauses.

[584]

Second, the trial
    judge failed to apply the test for
ad hoc
fiduciary duties properly.
    She erred in law in concluding that the Crown agreed to act solely in the best
    interests of the Treaty beneficiaries concerning the Treaty augmentation
    clauses. This was not possible because it would put the Crown in an inevitable
    conflict of interest.

[585]

I see no error in the
    trial judges conclusion that there is no
sui generis
fiduciary duty
    in the circumstances. I will explain why courts should be cautious in expanding
    the scope of the
sui generis
fiduciary duty where the actions of the
    Crown are more in the nature of a public rather than a private duty.

(b)

Ad Hoc
Fiduciary Duty

(i)

Nature of the Duty

[586]

An
ad hoc
fiduciary duty arises where there is: (1) an undertaking by the alleged
    fiduciary to act in the best interests of the alleged beneficiaries; (2) a
    defined class of beneficiaries vulnerable to the fiduciarys control; and (3) a
    legal or substantial practical interest of the beneficiaries that stands to be
    adversely affected by the alleged fiduciarys exercise of discretion or
    control.
[483]

[587]

The trial judge found
    that the Crown assumed an
ad hoc
fiduciary duty under the Treaties.
[484]
In coming to this decision, she held that all three elements of the test for an
ad hoc
fiduciary duty were met. First, the Crown undertook to act
    exclusively in the best interests of the Treaty beneficiaries. The trial judge
    found that there was no competing interest or duty for the Crown to engage in a
    process to determine if economic circumstances warranted an increase in the
    annuities.
[485]
Second, the Treaty beneficiaries constituted a defined class of persons
    vulnerable to the Crowns control.
[486]
Third, the beneficiaries stood to be adversely affected because of the
    discretionary control of the Crown over the annuity increase.
[487]


[588]

In my view, the trial
    judge made an error of law in holding that the Crown undertook to act
    exclusively in the best interests of the Treaty beneficiaries. At trial,
    Ontario and Canada submitted that they could not owe an
ad hoc
fiduciary duty to the Treaty beneficiaries in paying monies under the
    augmentation clauses because they cannot act with exclusive or utmost loyalty
    to them. They argued that it would put them in a conflict of interest if, in
    paying out monies under the augmentation clauses, they had to place the
    interests of the Treaty beneficiaries over the interests of all other members
    of society.

[589]

The trial judge
    appeared to recognize the implications of a broad-based fiduciary duty finding.
    She attempted to resolve that potential conflict of interest by narrowing the
    scope of the fiduciary duty she was imposing. That duty would not relate to the
    results of the Treaty augmentation process (i.e., the actual setting and paying
    of compensation). Instead, it would be procedural and only apply to the process
    to determine whether the compensation should be paid. This was most clearly
    stated in para. 525:

The Crown argument that an ad hoc fiduciary duty analysis fails
    because the Crown cannot act with exclusive or utmost loyalty to the
    Anishinaabe because it wears many hats is based on a faulty premise. The
    Crown focused on the land as the interest at stake; however, the interest at
    stake is embedded in the augmentation clause. It is a promise to engage in the
    process of implementing the conditional augmentation promise. The legal
    interest subject to the duty is not in an absolute right to increases and is
    not in relation to the administration of the land. Rather, the legal interest
    created by the augmentation clause is to engage in the process to determine
    whether increases are payable. The right to have the Crown engage in the
    process came into effect upon the signing of the Treaties and continues to
    exist today.
[488]

[590]

Throughout her
    reasons, the trial judge was at pains to emphasize that the
ad hoc
fiduciary duty was process-based and not results-based:

·

Specifically, I find that the Crown undertook to act exclusively
    in the best interest of the Treaties beneficiaries in their promise to engage
    in a process to determine if the economic circumstances warrant an increase to
    the annuities.
[489]

·

The Crown reminded th[e] court that a finding of ad hoc
    fiduciary duty on the part of the Crown would be rare. However, the circumstances
    in this case, being a duty to engage in a process to meet a treaty promise, may
    constitute one of those rare cases. The Crown has no other conflicting demands
    when it comes to engaging in the process.
[490]

·

The best interests define the standard of conduct of the
    fiduciary; they do not define the outcome. It is the standard of conduct that
    defines, in general terms, the duties of the fiduciary. As the court said in
Williams
    Lake
, the Crown will fulfil its fiduciary obligation by meeting the prescribed
    standard of conduct, not by delivering a particular result.
[491]

·

For example, the Crown has discretion on when and how it
    provides sufficient information to allow the Anishinaabe, or a court on review,
    to assess the Crowns calculations of net Crown revenues. The discretion is
    subject to the duties of a fiduciary and, therefore, is not unfettered and must
    be carried out within the parameters of the duty of honour and the duties of
    loyalty and utmost good faith.
[492]

·

I am satisfied that an ad hoc fiduciary duty arises in the
    context of the Robinson Treaties and attaches to the Treaties promise to
    engage with the process to determine if the Crown can increase the annuities
    without incurring loss (based on a calculation of relevant revenues and
    expenses to determine net Crown revenues).
[493]

[591]

The point the trial
    judge was making was that the Crown was not put in an untenable position
    because it was not required to favour the Treaty beneficiaries over the
    interests of other residents of Ontario, as there was no competing duty
    regarding procedural matters. By limiting the scope of the duty, she tried to
    avoid placing the Crown in an inherent conflict of interest.

[592]

Notwithstanding the
    foregoing, the trial judge greatly expanded the scope of the Crowns fiduciary
    duty in settling the judgments for these cases. Gone was the notion of a
    limited procedural-based fiduciary duty, and in its place was a broad,
    substantive fiduciary duty on the Crown to implement the augmentation clauses.

[593]

The judgment in the
    Superior Plaintiffs action reads, in part, as follows:

[1] THIS COURT ADJUDGES AND DECLARES THAT, considered apart
    from the pleaded defences based on statutes of limitation,
res judicata
and
laches,
including acquiescence, and without making a determination as to
    the respective responsibilities and liabilities of Canada and Ontario:

a) Pursuant to the Robinson
    Superior Treaty of 1850, the Crown is obligated to increase, and the First
    Nation Treaty Parties have a collective treaty right to have increased, from
    time to time, the promised annuity payment of £500 (or $2,000) if net Crown
    resource-based revenues from the Treaty territory permit the Crown to do so
    without incurring loss, with the amount of annuity payable in any period to
    correspond to a fair share of such net revenues for that period;

b) To fulfill its obligation in (a)
    above, the Crown:

i. is required to periodically
    engage in a process, in consultation with the First Nation Treaty parties, to
    determine the amount of net Crown resource-based revenues; and

ii. if there are sufficient Crown
    resource-based revenues, to permit the Crown to pay an increased annuity amount
    without incurring loss, is required to pay any such increase;

c)
In fulfilling these
    obligations and requirements of the augmentation promise, the Crown is subject
    to the duties flowing from the honour of the Crown and the fiduciary duty which
    the Crown owes to the First Nation Treaty parties
[.] [Emphasis added.]

[594]

Identical language is
    used in the judgment for the action brought by the Huron Plaintiffs.

[595]

Clearly, the text of
    the judgments is not restricted to process. The trial judge is ordering that
    the Crown has an obligation to pay an increased annuity amount where it can do
    so without incurring a loss. In fulfilling that obligation, the Crown is
    subject to a fiduciary duty. The notion of a limited, procedural-based
    fiduciary duty, as articulated in the reasons, is therefore not consistent with
    the judgments rendered by the trial judge.

[596]

It is well settled in
    the jurisprudence that an appeal is from the order or judgment rendered in the
    court below and not the reasons that are given in support thereof.
[494]
Thus, we must take the judgments that the trial judge signed as reflecting her
    finding on the scope of the Crowns fiduciary duty. As I will discuss in the
    next section of my reasons, however, regardless of whether the Crowns
    fiduciary duty is broad-based and substantive or narrow and procedural, the
    trial judge erred in law in finding an
ad hoc
fiduciary duty.

(ii)

Error in Imposing an
Ad Hoc
Fiduciary Duty

(i)

Substantive Fiduciary Duty

[597]

Concerning the
    broad-based and substantive fiduciary duty, Ontario submits that it is
    impossible for a government to act with the utmost good faith to only one group
    in society when making policy decisions. It argues that because the Crown
    wears many hats, it must balance the interests of all members of society and
    cannot benefit one group over the others. Binnie J. articulated the many hats
    argument in
Wewaykum
:

When exercising ordinary government powers in matters involving
    disputes between Indians and non-Indians, the Crown was (and is) obliged to
    have regard to the interest of all affected parties, not just the Indian
    interest. The Crown can be no ordinary fiduciary; it wears many hats and
    represents many interests, some of which cannot help but be conflicting:
Samson
    Indian Nation and Band v. Canada
, [1995] 2 F.C. 762 (C.A.). As the
    Campbell River Band acknowledged in its factum, [t]he Crowns position as
    fiduciary is necessarily unique (para. 96). In resolving the dispute between
    Campbell River Band members and the non-Indian settlers named Nunns, for
    example, the Crown was not solely concerned with the band interest, nor should
    it have been. The Indians were vulnerable to the adverse exercise of the
    governments discretion, but so too were the settlers, and each looked to the
    Crown for a fair resolution of their dispute. At that stage, prior to reserve
    creation, the Court cannot ignore the reality of the conflicting demands
    confronting the government, asserted both by the competing bands themselves and
    by non-Indians.
[495]


[598]

Similarly, in a recent
    article, Bryan Birtles argues in favour of a sovereign-to-sovereign approach to
    treaty agreements because a fiduciary relationship means a fiduciary must put
    its beneficiarys interests ahead of anyone elses. But such a situation is
    impossible to maintain between the Crown and a single segment of society: the
    Crown has competing interests, including its own, that structurally preclude it
    from putting Indigenous interests first.
[496]

[599]

The trend in the
    jurisprudence is to move away from imposing fiduciary duties on governments in
    implementing their policy obligations. As the Supreme Court stated in
Elder
    Advocates
,
the Crowns
    broad responsibility to act in the public interest means that situations where
    it is shown to owe a duty of loyalty to a particular person or group will be
    rare.
[497]


[600]

The cases at bar serve
    as good examples of the difficulty with trying to shoehorn in a fiduciary duty
    that does not fit the circumstances. Leonard I. Rotman writes that a fundamental
    problem with the law of fiduciary duties is that courts do not have a proper
    understanding of why the concept exists, what it was meant to accomplish, and
    the purpose it was intended to facilitate.
[498]
This leads to situations where the concept is improperly applied. As Rotman
    states, this unsophisticated and often-improper understanding of the fiduciary
    concept not only results in the misapplication of its principles, but also
    allows for the purposeful misuse of its principles to generate particular results.
[499]

[601]

It is important to
    remember that where an
ad hoc
duty is found,

[f]iduciaries are obliged to abnegate all self-interest, as
    well as those of third parties, and focus solely on the best interests of their
    beneficiaries. This requires that fiduciaries not benefit themselves or third
    parties, whether financially or otherwise, from their positions as
    fiduciaries.
[500]

[602]

A finding of a
    fiduciary duty greatly expands the scope of available remedies. The
    availability of those remedies must not drive the analysis of whether such a
    duty is extant. However, I highlight below the extent of the potential damages
    to demonstrate that if the trial judges finding regarding a broad
ad hoc
fiduciary duty were permitted to stand, the result would be inconsistent with
    her central finding that there should be a sharing of revenue between the Crown
    and the Treaty beneficiaries.

[603]

Pursuant to their
    rights under the
ad hoc
fiduciary duty, the beneficiaries would be
    well within their rights to insist on total compensation of all net resources
    and take the position that the Crown has no right to benefit in any manner from
    the development of the lands subject to the Treaties. The Crown would be
    obliged to strictly account for and pay out all monies received, over and above
    the associated expenses. There would be no sharing in the circumstances; the
    Crowns only obligation would be to the Treaty beneficiaries.

[604]

In addition to the
    preceding, the beneficiaries right to compensation could arguably exceed net
    revenues. As a fiduciary fulfilling its standard of care of the utmost good
    faith, the Crown is obliged not to benefit itself or third parties at the
    expense of their beneficiaries interests. Strict rules against conflicts of
    interest enforce the prohibitions against self-dealing and preferring the
    interests of others. In enforcing these rules, the courts will not inquire into
    why the breach occurred and will brook no arguments regarding why it was
    justified in the circumstances. Instead, as Rotman states, [b]reaching a fiduciary
    duty is not a question of degree: it is a binary definitioneither a breach has
    occurred or it has not.
[501]


[605]

The equitable remedies
    that flow from such a breach include constructive trusts, equitable
    compensation, and disgorgements of profits. Moreover, the presumption of most
    advantageous use will be employed in calculating lost opportunities by a
    beneficiary wrongfully deprived of property.
[502]

[606]

The beneficiaries in
    these cases could argue that they are entitled to the revenue generated
and
what revenue could have been generated by the lands covered by the Treaties.
    For example, an argument might be advanced that the Crown set mining rates at
    too low a level in order to attract investment, create good-paying jobs, and
    generate tax revenue. Arguably such policies prefer the interests of the Crown
    or those of third parties over the interests of the Treaty beneficiaries. The
    Crown would have the onus of establishing why its policies did not amount to a
    breach of its fiduciary duty. In that regard, its arguments about its public
    policy motivations in setting its mining royalties would be of no moment.

[607]

Based on the
    foregoing, it is clear that the trial judges finding of a broad-based
    substantive fiduciary duty cannot stand for two reasons. First, the imposition
    of such a duty places the Crown in a conflict of interest. It forces the Crown
    to prefer the interests of one group over all others in making policy decisions
    regarding the development of a large swath of the province. The trial judge
    erred in finding that the Crown agreed to what is essentially a legal
    impossibility. Second, the trial judge has provided no reasons to support her
    finding that such a duty is owed. On the contrary, her reasons support the
    opposite conclusion that the duty is limited to procedural matters only.

(ii)

Procedural Fiduciary Duty

[608]

Even if the fiduciary
    duty was limited to procedural matters, Ontario denies that it could carry out
    the procedural obligations contemplated by the trial judges reasons with
    utmost loyalty to the Treaty beneficiaries. It argues that it has control over
    information that it cannot be forced to produce. Ontario cites cabinet
    confidences on the setting of royalties and land management policies,
    third-party confidential business information, and solicitor-client and
    litigation privileged documents as examples. For these and other documents, the
    Crown has a competing duty to keep the information confidential. In other
    words, even a limited procedural-based fiduciary duty would place the Crown in
    a conflict of interest. I accept that submission.

[609]

In addition, there is
    no evidence in the record that supports a finding that the Crown undertook to
    act exclusively in the best interests of the Treaty beneficiaries with respect
    to procedural matters stemming from the augmentation clauses. Accordingly, to
    the extent that the trial judge can be found to have only imposed a
    procedural-based fiduciary duty, I would order that it also be set aside.

(c)

Sui Generis
Fiduciary Duty

(i)

Legal Principles

[610]

The jurisprudence has
    developed a unique fiduciary duty that may arise in certain circumstances in
    dealings between Aboriginal peoples and the Crown. A
sui generis
fiduciary duty was first recognized in
Guerin
.
[503]
It was developed in response to the political trust doctrine, which held that
    governments could owe trust-like obligations to specific people or groups, but
    that those obligations were not enforceable in the courts.
[504]


[611]

Guerin
involved a situation where the Musqueam Nation made a claim against the federal
    government in relation to the surrender of a portion of their reserve to a golf
    club. The focus of the courts analysis was on the fact that the Musqueam
    Nation had Aboriginal title over the land in issue. Dickson J. (as he then was)
    explained that the
sui generis
fiduciary duty arises from the unique
    relationship between the Crown and Aboriginal peoples regarding lands subject
    to Aboriginal title:

The fiduciary relationship between the Crown and the Indians
    has its roots in the concept of aboriginal, native or Indian title. The fact
    that Indian Bands have a certain interest in lands does not, however, in itself
    give rise to a fiduciary relationship between the Indians and the Crown. The
    conclusion that the Crown is a fiduciary depends upon the further proposition
    that the Indian interest in the land is inalienable except upon surrender to
    the Crown.

An Indian Band is prohibited from directly transferring its
    interest to a third party. Any sale or lease of land can only be carried out
    after a surrender has taken place, with the Crown then acting on the Band's
    behalf. The Crown first took this responsibility upon itself in the Royal
    Proclamation of 1763. It is still recognized in the surrender provisions of the
Indian Act
. The surrender requirement, and the responsibility it
    entails, are the source of a distinct fiduciary obligation owed by the Crown to
    the Indians. In order to explore the character of this obligation, however, it
    is first necessary to consider the basis of aboriginal title and the nature of
    the interest in land which it represents.
[505]

[612]

Dickson J.
    distinguished the political trust jurisprudence on the basis that in those
    cases, the party claiming to be [a] beneficiary under a trust depended entirely
    on statute, ordinance or treaty as the basis for its claim. In contrast, in
Guerin
,
the interest in the lands was based on
    a pre-existing legal right not created by Royal Proclamation, by s. 18(1) of
    the
Indian Act
, or by any other executive order or legislative
    provision.
[506]

[613]

Post-
Guerin
,
    there followed a series of cases alleging breaches of fiduciary duty in
    circumstances ranging from claims for moving expenses to the provision of
    social services. In
Wewaykum,
Binnie J. placed limits on the
    applicability of the
sui generis
fiduciary duty. He commented as
    follows:

But there are limits. The appellants seemed at times to invoke
    the fiduciary duty as a source of plenary Crown liability covering all
    aspects of the Crown-Indian band relationship. This overshoots the mark. The
    fiduciary duty imposed on the Crown does not exist at large but in relation to
    specific Indian interests. In this case we are dealing with land, which has
    generally played a central role in aboriginal economies and cultures. Land was
    also the subject matter of
Ross River
(the lands occupied by the
    Band),
Blueberry River
and
Guerin
(disposition of existing
    reserves). Fiduciary protection accorded to Crown dealings with aboriginal
    interests in land (including reserve creation) has not to date been recognized
    by this Court in relation to Indian interests other than land outside the
    framework of s. 35 (1) of the
Constitution Act, 1982
.
[507]

[614]

Binnie J. went on to
    refine the nature of the
sui generis
fiduciary duty as follows:

I do not suggest that the existence of a public law duty
    necessarily excludes the creation of a fiduciary relationship. The latter,
    however, depends on identification of a cognizable Indian interest, and the
    Crowns undertaking of discretionary control in relation thereto in a way that
    invokes responsibility in the nature of a private law duty.
[508]

[615]

The jurisprudence has
    developed a two-part test for determining whether a
sui generis
fiduciary duty arises in the circumstances of a given case. For such a duty to
    apply there must exist both: (1) a specific or cognizable Aboriginal interest;
    and (2) a Crown undertaking of discretionary control over that interest.
[509]


[616]

It is essential to
    recognize that the nature of this fiduciary duty is distinct from an
ad hoc
fiduciary duty in that it permits a balancing of competing interests. Brown J.
    (dissenting) described it this way in
Williams Lake
:

This form of fiduciary duty imposes a less stringent standard
    than the duty of utmost loyalty incident to an
ad hoc
fiduciary duty.
    It requires Canada to act  in relation to the specific Aboriginal interest 
    with loyalty and in good faith, making full disclosure appropriate to the
    subject matter and with ordinary diligence:
Wewaykum
, at paras. 81 and
    97. It allows for the necessity of balancing conflicting interests:
Wewaykum
,
    at para. 96.
[510]

[617]

Therefore, unlike the
    situation with an
ad hoc
fiduciary duty, discussed above, it is open
    to a
sui generis
fiduciary to act in more than one interest. This is a
    fiduciary duty that breaks with the traditional tenets of the doctrine as
    developed by the courts of equity. It arose from case-specific circumstances
    where Canadian courts found it necessary to impose a higher duty on the Crown
    in order to protect Aboriginal interests, but where the courts also recognized
    that the Crown requires some degree of flexibility to undertake its duty to the
    broader public.

(ii)

Application of Principles

[618]

The trial judge found
    that no
sui generis
fiduciary duty was established on the facts of
    these cases, reasoning:

The first element of the
sui generis
approach requires
    the Plaintiffs to establish that they have a specific or cognizable Aboriginal
    interest: the interest must be a distinctly Aboriginal, communal interest in
    land that is integral to the nature of the distinctive community and their
    relationship to the land. The Anishinaabe interest in the territories that
    became the subject of the Robinson Treaties was historically occupied and
    communally held prior to contact and is, therefore, capable of constituting a
    specific or cognizable Aboriginal interest in land in the pre-Treaty context.
    There is no controversy on this point.

The Defendants contend, however, that the surrender that was
    made as part of the Treaties extinguished the Anishinaabes specific or
    cognizable Aboriginal interest in the lands, and, therefore, the pre-existing
    interest is not capable of grounding a
sui generis
fiduciary duty.

I do not have to decide whether the Anishinaabe's cognizable
    interest in the land survives the signing of the Robinson Treaties. This
    question can be left for another day because I find that the second element of
    the
sui generis
analysis is not met. That is, there was no Crown
    undertaking of discretionary control over the Anishinaabes interest in land,
    however that interest might be characterized.

Specifically, I find that neither the Treaties text nor the
    context in which the Treaties promise was made support the contention that the
    augmentation clause included the notion or concept that the Crown would
    administer the land on behalf of the Treaties beneficiaries. In the absence of
    an undertaking in respect of the cognizable interest in the land, I find that a
sui generis
fiduciary duty does not arise from the Robinson Treaties
    promise.
[511]

[619]

The Huron Plaintiffs
    argue that the trial judge erred in not finding a
sui generis
fiduciary duty, submitting that the two elements of the duty are satisfied.
    First, the augmentation promise is a specific and cognizable interest that is
    distinctly Aboriginal and in the nature of a private law duty. Second, the
    circumstances under which the enhanced annuities are to be paid (i.e., where
    Crown revenues from the land allow for it) constitute a Crown undertaking of
    discretionary control over the interest.

[620]

The Superior
    Plaintiffs take the position that the trial judge erred in stating that a
sui
    generis
fiduciary duty only arises with respect to interests in land. They
    submit that
sui generis
fiduciary duties can arise in respect of all
    Aboriginal and treaty rights recognized under s. 35 of the
Constitution Act
,
1982
, such as Aboriginal rights to fish and treaty rights to hunt, fish,
    and trap. In this case, Ontario conceded that the Treaty beneficiaries have a
    right to augmentation of Treaty annuities. The Superior Plaintiffs argue that
    since there is a collective entitlement covered under s. 35, which is subject
    to Crown discretionary control, a
sui generis
fiduciary duty arises.

[621]

I would not give
    effect to the arguments advanced by the Huron and Superior Plaintiffs for the
    following reasons.

[622]

The Huron and Superior
    Plaintiffs take the position that the trial judge erred in restricting
sui
    generis
fiduciary duties to interests in land. They submit that the
    Supreme Court has not ruled that an interest in land is required to qualify as
    a cognizable interest. In other words, the Huron and Superior Plaintiffs
    position is that the duty has been expanded from the circumstances of
Guerin
and is sufficiently flexible to apply in different contexts as required to
    ensure equitable results.

[623]

I pause to note that
    the trial judge did not decide this issue on the basis of a cognizable
    Aboriginal interest. Nonetheless, the Huron and Superior Plaintiffs raise
    important issues about the scope of the
sui generis
fiduciary duty and
    where it may be properly applied. Those issues are worthy of consideration by
    this court.

[624]

When counsel for the
    Huron and Superior Plaintiffs were asked in oral argument if the
sui
    generis
fiduciary duty had ever been applied in the context of a treaty, they
    were unable to point the panel to any applicable case law. Conversely, the
    Crown pointed out that the Supreme Court had repeatedly restricted cognizable
    Aboriginal interests to pre-existing interests and not interests founded by
    treaty, legislation, or executive action.
[512]
I agree with the Crowns submission. Based on the jurisprudence, the Huron and
    Superior Plaintiffs interests as found in the Robinson Treaties would not
    qualify as a cognizable Aboriginal interest.

[625]

The Huron and Superior
    Plaintiffs submit that the lack of precedent does not necessarily preclude the
    application of a
sui generis
fiduciary duty. Assuming without deciding
    that treaty rights can qualify as a cognizable Aboriginal interest, the
    question is whether it is advisable in the circumstances of these cases to find
    such a duty. I would answer that question in the negative for two reasons.

[626]

First, courts must be
    careful in identifying a cognizable interest, as was emphasized by Wagner J. in
Williams Lake
:

The specific or cognizable Aboriginal interest at stake must be
    identified with care. The fiduciarys obligation is owed in relation to that
    interest, and its content will depend on the nature and importance of the
    interest sought to be protected:
Manitoba Metis Federation
, at para.
    49;
Wewaykum
, at para. 86. If there is no Aboriginal interest
    sufficiently independent of the Crowns executive and legislative functions to
    give rise to responsibility in the nature of a private law duty, then no
    fiduciary duties arise  only public law duties: see
Wewaykum
, at
    paras. 74 and 85;
Guerin
, at p. 385; see also D. W. Elliott, Much Ado
    About Dittos:
Wewaykum
and the Fiduciary Obligation of the Crown
    (2003), 29
Queens L.J.
1.
[513]

[627]

In the instant cases,
    there is an element of private law duty in the Treaties. These were resource
    agreements entered into specifically with the signatory bands. However, that
    element is overwhelmed by the public law aspects of the relationship created by
    the Robinson Treaties. The Treaties engage the Crowns responsibility for
    managing a large section of the northern portion of the province. The Crowns
    responsibilities include not only the setting of mining rates and taxes, but
    also the building of infrastructure and community development. This is
    factually far removed from the situation in
Guerin
, which created the
sui
    generis
fiduciary duty based on the Crown policy of acting as an
    intermediary in the sale and lease of Aboriginal lands. I am of the view that
    the Aboriginal interests in the cases at bar are not sufficiently independent
    of the Crowns executive and legislative functions to ground a cognizable
    Aboriginal interest.

[628]

Second, I also agree
    with the trial judges finding that there was no evidence of a Crown
    undertaking of discretionary control over any cognizable interest. Thus,
    neither of the requisite elements of a
sui generis
fiduciary duty were
    met in the cases at bar.

(3)

Crown Immunity

[629]

At

trial,

Ontario

argued

that

the

Huron and Superior Plaintiffs

claims

for

breach

of

fiduciary

duty

were

barred

by

s.

28 of
the
Proceedings
    Against the Crown Act
(
PACA
).
[514]

Pursuant

to

s.

28,

the

Crown

is

immune

against

claims

for

acts

or

omissions

prior

to

the date

that
the
PACA

came

into

force

(September

1,

1963),

except

for

claims

that
meet
the

exception in

s.

29(1).

That subsection

permits
a party to commence
    an
action

that

could

have

been

enforced

by

a

petition

of right

prior

to

September

1,

1963.

Ontario

submitted

that

the

Huron
    and Superior Plaintiffs

claims

could

not

be

captured
    by the exception in s. 29(1) because, prior to the enactment of the
PACA
,
    Crown immunity covered all equitable wrongs, not

simply torts.

[630]

The trial judge
    rejected Ontarios argument by drawing a distinction between tort claims and

claims for equitable relief. She reasoned
    that, even before the
PACA
was enacted, claims

for equitable relief could be brought against the Crown on a
    petition of right.
[515]


[631]

On appeal, Ontario
    makes a series of arguments in support of its submission that the trial judge
    erred in her consideration of the Crown immunity issue. However, Ontario only
    asserts Crown immunity with respect to the Huron and Superior Plaintiffs
    breach of fiduciary duty claims. Given my finding that the Crown does not owe a
    fiduciary duty to the Huron and Superior Plaintiffs regarding the augmentation
    clauses, it is unnecessary for me to consider these arguments.

(4)

Limitations Defence

(a)

Overview

[632]

Ontarios position is
    that the Huron and Superior Plaintiffs claims for breach of Treaty are subject
    to either a twenty-year limitation period (as actions upon a specialty) or a
    six-year limitation period (as actions of account or actions for contract
    without specialty) under the
1990
Limitations
    Act
.

[633]

The 1990
Limitations
    Act
applies by virtue of ss. 2(1)(e), 2(1)(f) and 2(2) of the
Limitations
    Act
,
2002
(the 2002
Limitations Act
).
[516]
These sections provide that proceedings based on Aboriginal and treaty rights
    recognized by s. 35 of the
Constitution Act
,
1982
, or equitable
    claims brought by Aboriginal people are governed by the law that would have
    been in force with respect to limitation of actions if this Act had not been
    passed. Consequently, the parties agree that if any limitations legislation
    applies to these cases, it is the 1990
Limitations Act
.

[634]

The trial judge
    rejected the Crown's submission, reasoning that an Aboriginal treaty is not a
    contract for limitations purposes, but rather a unique agreement between the
    Crown and Indigenous peoples intended to be a part of Canadas constitutional
    fabric.
[517]
She also held that the Robinson Treaties could not be considered specialties
    because specialties are a specific type of contract.
[518]
Further, even if the Treaties could be characterized as contracts, they could
    not be interpreted as specialties, which derive their meaning from their form.
[519]
By contrast, Aboriginal treaties represent a vast body of promises between the
    parties that go beyond the documents words and must be understood in their
    full historical and cultural context.
[520]
Finally, the trial judge rejected Ontarios alternative argument that the Huron
    and Superior Plaintiffs Treaty claims were actions of account as contemplated
    by the 1990
Limitations Act
. The trial judge agreed with the Huron and
    Superior Plaintiffs that they were seeking equitable compensation from the
    Crown, which is unlike a common law accounting.
[521]


[635]

Although unnecessary,
    given her conclusion on the application of the 1990
Limitations Act
,
    the trial judge went on to discuss the liberal statutory interpretation
    principles in favour of Indigenous peoples that are mandated by
Nowegijick
.
[522]
She acknowledged that those principles only apply to legislation that expressly
    deals with Indigenous people, not to statutes of general application. However,
    the trial judge observed that statutes of general application might attract
    such special rules of interpretation in certain circumstances. She reasoned
    that allowing a technical defence based on a strict and narrow interpretation
    of the
PACA
and the 1990
Limitations Act
would effectively
    terminate the Huron and Superior Plaintiffs Treaty rights. Consequently, the
    trial judge concluded that both the
PACA
and the 1990
Limitations Act
could attract the
Nowegijick
principles of interpretation.

[636]

The trial judge also
    noted that the
Nowegijick
principles are connected to the honour of
    the Crown. Given that the
PACA
and the 1990
Limitations Act
have a significant impact on the enforcement of the Crowns Treaty promises to
    the Huron and Superior Plaintiffs, the trial judge concluded that these
    statutes could be interpreted according to the duties flowing from the honour
    of the Crown.

[637]

Ultimately, the trial
    judge found that she would have applied the
Nowegijick
principles and
    the honour of the Crown when interpreting Ontarios statutory defences of Crown
    immunity and limitations, had it been necessary to do so. However, she did not
    undertake this analysis since she held that the Crown did not have immunity
    from the Huron and Superior Plaintiffs breach of fiduciary duty claims, and
    the Huron and Superior Plaintiffs were not statute-barred from bringing their
    breach of Treaty claims.

[638]

Ontario submits that
    the trial judge erred in her interpretation of the 1990
Limitations Act
.
    Below, I will review the terms of that legislation
,
utilizing the modern approach to statutory interpretation
    to examine Ontarios arguments. In so doing, I will use a standard of
    correctness, as the issue concerns purely legal questions of statutory
    interpretation.
[523]


[639]

I note that I will not
    consider the trial judges comments regarding the
Nowegijick
principles and the honour of the Crown to interpret the 1990
Limitations
    Act
. The comments were
obiter
, and I do not need to consider them
    to dispose of this ground of appeal.

(b)

Modern Approach to Statutory Interpretation

[640]

The modern approach to statutory interpretation
    was recently summarized by Côté J. in
Pointes Protection Association
:

Indeed, this Court has reiterated on
    numerous occasions that the modern approach to statutory interpretation
    requires that the words of a statute be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament (E. A. Driedger,
Construction
    of Statutes
(2nd ed. 1983), at p. 87, quoted in
Rizzo
    & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27,
    at para. 21).
[524]

[641]

The key point of the modern approach is
    that statutory interpretation cannot be founded on the wording of the
    legislation alone. The court must consider the purpose of the disputed
    provision(s) and all of the relevant context, including the public policy
    objectives underlying the legislation.

[642]

Ultimately, the court must adopt an
    interpretation that is appropriate in the circumstances. As Ruth Sullivan
    notes:

An appropriate interpretation is one
    that can be justified in terms of (a) its plausibility, that is, its compliance
    with the legislative text; (b) its efficacy, that is, its promotion of
    legislative intent; and (c) its acceptability, that is, the outcome complies
    with accepted legal norms; it is reasonable and just.
[525]


(c)

Applying the Modern Approach to the
    1990
Limitations Act

(i)

No Reference to Aboriginal Treaties

[643]

Ontario relies on ss. 45(1)(b),
    45(1)(g), and 46 of the 1990
Limitations Act
, which read as follows:

45. (1) The following actions shall
    be commenced within and not after the times respectively hereinafter mentioned,



(b) an action upon a bond, or other
specialty
, except upon a
    covenant contained in an indenture of mortgage made on or after the 1st day of
    July, 1894;



within
twenty
    years after the cause of action arose
,



(g) an action for trespass to goods
    or land,
simple contract or debt grounded upon any
    lending or contract without specialty
, debt
    for arrears of rent, detinue, replevin or upon the case other than for slander,

within
six
    years after the cause of action arose
,



46. Every
action of account
, or for not
    accounting, or for such accounts as concerns the trade of merchandise between
    merchant and merchant, their factors and servants,
shall be commenced within six years after the cause of action
    arose
, and no claim in respect of a matter
    that arose more than six years before the commencement of the action is
    enforceable by action by reason only of some other matter of claim comprised in
    the same account having arisen within six years next before the commencement of
    the action. [Emphasis added.]

[644]

The crux of Ontario's argument is that
    when the legislature referred to a specialty, a simple contract or action of
    account in the 1990
Limitations Act
,
    it meant to include Aboriginal treaty claims. Ontario provides no authority to
    support its submission that the 1990
Limitations Act
should be interpreted in this manner. I also pause to note
    that Ontarios attempt to construe Aboriginal treaties as a form of contract is
    the antithesis of the position it takes on the Stage One appeal with respect to
    the nature of treaties for the purposes of determining the appropriate standard
    of review.

[645]

The primary difficulty I have with
    Ontarios submission is that one would have thought that if the legislature
    intended to impose a limitation period for Aboriginal treaty claims, it would
    have said just that in the 1990
Limitations Act
. In this regard, the
    context surrounding ss. 45(1)(b), 45(1)(g) and 46 is important. A review of the
    1990
Limitations Act
reveals that the
    legislature listed numerous causes of action and designated specific limitation
    periods for each one. However, the legislature did not include Aboriginal
    treaty claims in the statute or identify an applicable limitation period. For
    something as unique as Aboriginal treaty claims, it seems inconceivable that the
    legislature intended to impose a limitation period but left litigants to choose
    which of the limitation periods for a specialty, a simple contract, or an
    accounting applied.

[646]

Further, in the 2002
Limitations
    Act
the legislature specifically dealt with Aboriginal
    treaty claims. This suggests two things: (1) the legislature understood that
    Aboriginal treaty claims are distinct and cannot fall under the umbrella of
    specialties, contracts, or actions of account; and (2) when the legislature
    intended to deal with Aboriginal treaty claims, it did so explicitly.

[647]

The words of ss. 45(1)(b), 45(1)(g),
    and 46 appear to be clear on their face. The legislature chose to use legal
    terms like specialty, simple contract and account to delineate causes of
    action that will have limitation periods. The legislature is presumed to know
    both statutory and common law, and when it uses such terms, it is assumed to
    have used them in their correct legal sense
.
[526]
The ordinary meaning of the terms should therefore be
    given effect unless there is a reason to reject them.

(ii)

The Meaning of Contracts, Specialties
    and Accounting

[648]

It is well established in the
    jurisprudence that a court must consider the entire context of a statute before
    settling on what appears, at first blush, to be the plain meaning of a
    legislative provision.
[527]

[649]

Here, Ontario argues that despite the
    legislatures failure to use the term, treaty in the 1990
Limitations
    Act
, this court should interpret ss. 45(1)(b)
    and 45(1)(g) in conjunction with common law jurisprudence that characterizes
    Aboriginal treaties as contracts or specialties. Ontario similarly asserts that
    based on a contextual reading of s. 46, the type of claims asserted by the Huron
    and Superior Plaintiffs qualifies as an accounting
.
If Ontarios
    propositions are accurate, they would impact the meaning attributed to the
    terms, contract, specialty, and accounting, in the respective provisions,
    and influence the interpretation of the 1990
Limitations Act
. However, as I will discuss below, I do not believe that
    Ontarios submissions accurately reflect the current state of the law.

(i)

Contracts

[650]

Ontario concedes that Aboriginal
    treaties are more than simple contracts but submits that they are contracts
    within the meaning of the 1990
Limitations Act
. In support of this argument, Ontario points to several
    cases that have held Aboriginal treaties are contract-like. I agree that courts
    in Ontario and elsewhere in Canada have observed that treaties are analogous or
    tantamount to contracts.
[528]


[651]

Notwithstanding the foregoing, the
    trial judge was correct in rejecting this argument. She relied on a series of
    cases from the Supreme Court and a statement from the late Professor Peter W.
    Hogg that make clear that, although Aboriginal treaties and contracts may have
    features in common, they are distinct concepts in law. She reasoned as follows:

While treaties share some characteristics of contracts, that is
    they contain "enforceable obligations based on the mutual consent of the
    parties," the Supreme Court jurisprudence of the last three decades has
    been clear that treaties constitute a unique type of agreement. The following
    excerpts from the Supreme Court jurisprudence are examples of this view:

Sioui:

A treaty with the Indians is
    unique  it is an agreement
sui generis
which is neither created nor
    terminated according to the rules of international law.

Badger:

First it must be remembered that
    a treaty represents an exchange of solemn promises between the Crown and the
    various Indian nations. It is an agreement whose nature is sacred.

Sundown
:

Treaties may appear to be no
    more than contracts. Yet they are far more. They are a solemn exchange of
    promises made by the Crown and various First Nations. They often formed the
    basis for peace and the expansion of European settlement. In many if not most
    treaty negotiations, members of the First Nations could not read or write
    English and relied completely on the oral promise made by the Canadian
    negotiators. There is a sound historical basis for interpreting treaties in the
    manner summarized in
Badger
. Anything else would amount to a denial of
    fair dealing and justice between the parties.

Marshall:

Aboriginal treaties constitute a
    unique type of agreement and attract special rules of interpretation.

Finally, constitutional scholar, Peter W. Hogg, writes:

An Indian treaty has been described as unique or sui
    generis. It is not a treaty at international law and is not subject to the
    rules of international law. It is not a contract, and is not subject to the
    rules of contract
[529]

[652]

Thus, the weight of the jurisprudence
    is to the effect that, while Aboriginal treaties are comparable to contracts
    and may share similar features, they are different legal instruments. Treaties
    share with contracts the mutual exchange of consideration and obligations. Yet,
    the nature of the obligations that flow from these agreements are much
    different from a contract. Aboriginal treaties include concepts that are foreign
    to the law of contract, including the honour of the Crown and the protections
    contained in s. 35 of the
Constitution Act
,
1982
, both of which create unique substantive
    legal obligations towards Indigenous peoples. The trial judge did not err in
    finding that Aboriginal treaties cannot be considered contracts within the
    meaning of the 1990
Limitations Act
.

(ii)

Specialty

[653]

Ontario submits that the trial judge
    wrongly concluded that actions for breach of an Aboriginal treaty could not be
    actions upon a specialty within the meaning of s. 45(1)(b) of the 1990
Limitations
    Act
. It argues that a specialty is a disposition
    of property made in a particular form: the document must contain a promise,
    obligation, or covenant which is signed, sealed, and delivered with the intention
    to bind the parties in their act and deed. According to Ontario, while a
    specialty is an obligation under seal securing a debt, the debt need not exist
    when the specialty is made and sealed; it may be a future debt.

[654]

Ontario asserts that the question of
    whether the Robinson Treaties secure a debt, and the extent of any amount owing
    thereunder, should have been deferred to Stage Three as a genuine issue
    requiring a trial. Its position is that the Robinson Treaties were made and
    were intended to be made under seal. To the extent that the Huron and Superior
    Plaintiffs contest the Treaties seal, Ontario claims that such arguments
    involve questions of fact requiring the benefit of evidence to be adduced at
    the Stage Three hearing.

[655]

These submissions do not persuade me.
    The trial judge observed that the record was unclear on whether the Treaties
    were sealed but concluded that it was unnecessary for her to determine the
    issue. She assumed that the Treaties were sealed, and focused her analysis on
    the fundamental differences between a specialty and a treaty:

However, even if one were to assume that the Treaties were
    sealed and that the presence of seals somehow transformed these Treaties into
    specialties, this characterization would conflict with the findings on Stage
    One that the Treaties must be understood in their full historical and cultural
    context. In contrast, the meaning of specialties comes from the form of the
    document itself.


In
Friedmann
, the Supreme Court briefly outlined the
    history of the practice of sealing documents, stating:

The seal rendered the terms of the
    underlying transaction indisputable, and thus rendered additional evidence
    unnecessary A contract under seal derived, and still derives, its validity
    from the form of the document itself. [Citations omitted.]

Such a document is, by definition, in stark contrast to the
    findings on Stage One, with respect to the vast historical, cultural, and
    Anishinaabe legal perspective that underlies the meaning of the Treaty
    documents.

The Treaties must be interpreted according to treaty
    interpretation principles settled in the jurisprudence, which is fully outlined
    in Stage One of this proceeding.

On the other hand, the form controls the substance in a
    specialty. But relying only on the form of the written document is anathema to
    the task of treaty interpretation. The finding in Stage One was that the treaty
    represented a vast body of understanding of the parties in their dealings with
    one another beyond the mere words of the document.
[530]

[656]

I agree with and adopt
    the trial judges analysis. In considering Ontarios submission that a treaty
    is a form of specialty, the correct place to start is a review of the nature of
    an Aboriginal treaty and a specialty. As noted above, even in cases where the
    text of an Aboriginal treaty does not include an ambiguity, courts must have
    regard to the context surrounding its negotiation and execution to understand
    its meaning. The opposite is true with a specialty. It is a unique form of
    legal document that permits the parties and the court to look strictly at what
    is within its four corners to ascertain its meaning. The whole point of
    creating a specialty agreement is to avoid the type of analysis that is
    required in Aboriginal treaty interpretation.

[657]

The fundamental differences
    between these types of agreements leads me to conclude that the trial judge was
    correct in finding that the Robinson Treaties are not specialties. It is
    therefore unnecessary for me to consider the trial judges additional finding
    that the Robinson Treaties do not secure a debt.

(iii)

Accounting

[658]

Ontario submits that
    the trial judge erroneously held that the Huron and Superior Plaintiffs
    actions could not be viewed as actions for an accounting within the meaning of
    s. 46 of the 1990
Limitations Act
. She reasoned that the actions were
    seeking equitable compensation, not a common law accounting, and thus the
    claims did not fall within the ambit of s. 46.
[531]
According to Ontario, this was an error because an action for an accounting is
    incidental to an action brought in contract, or any other relationship where
    there is an equitable or legal duty to account.

[659]

I would not give
    effect to this ground of appeal. In my view, it can be dismissed summarily. As
    Dan Zacks notes in his authoritative blog on limitation periods, an analysis
    pursuant to the 1990
Limitations Act
always began by classifying the
    action  [i.e.,] determining which form of action included the cause of action
    being advanced.
[532]

[660]

The form of action for
    an action of account was described by the Ontario Law Reform Commission in
    its
Report on the Limitation of Actions
as follows:

The actions of account expressly referred to in section 46
    probably are only those which would have been brought at common law and do not
    include equitable actions of account. Section 46 was originally enacted to
    remove the exception of merchants accounts contained in section 3 of
The
    Limitations Act, 1623
. Section 3 provided,
inter alia
, that all
    common law actions of account, except merchants accounts, must be brought
    within six years after the cause of action arose. When section 46 first became
    law, it clearly only referred to merchants accounts. Owing to minor changes in
    punctuation and wording, the section now is ungrammatical and appears on the
    surface to apply to all actions of account, although it is unlikely that the
    changes were intended to produce the latter result.
[533]

[661]

Section 46 of the 1990
Limitations Act
, which was intended to be limited to merchants
    accounts, has no application to the instant cases. Therefore, I would reject
    this ground of appeal.

(d)

Summary

[662]

The legislature chose
    not to reference Aboriginal treaties in the 1990
Limitations Act
,
    although it did so in the 2002
Limitations Act
. This is strongly
    suggestive of an intention not to impose a limitation period for claims based
    on a breach of an Aboriginal treaty. Ontarios arguments that the legislature
    intended to cover Aboriginal treaty claims under the terms contract,
    specialty, or action of account are unpersuasive. As discussed above, these
    claims are distinct in law from one based on a breach of an Aboriginal treaty.
    Accordingly, I would dismiss this ground of appeal.

C.

Disposition

[663]

For the preceding
    reasons, I would dismiss Ontarios appeal of the trial judges interpretation
    of the Robinson Treaties. Regarding fiduciary duty, I would set aside the trial
    judges finding that the Crown owes the Huron and Superior Plaintiffs a
    fiduciary duty, and accordingly I do not consider Ontarios claim of Crown
    immunity. Finally, I would dismiss Ontarios appeal of the trial judges
    decision on its defence under the 1990
Limitations Act
.

[664]

In summary, I would
    grant the appeal from the Stage One proceedings in part, amend the judgments as
    set out in Appendix A to these reasons, and remit the matter of the Huron
    Plaintiffs costs for the Stage One proceedings to the trial judge for
    reconsideration in accordance with the reasons of Lauwers and Pardu JJ.A. I
    would dismiss the appeal from the Stage Two proceedings. I would award costs of
    the appeals in the manner set out in the joint reasons.

Released: November 5, 2021  G.R.S.

C.W. Hourigan J.A.


Appendix A: Amended
    Stage One Judgments

RESTOULE JUDGMENT
    (Huron Action)

(PARTIAL JUDGMENT -
    STAGE ONE - RELEASED JUNE 17, 2019)

THROUGH NOTICES OF MOTION
for
    summary judgment brought in the within action the plaintiffs sought the
    following declaratory relief, and costs:

1. The plaintiffs move for a
    declaration that, considered apart from the pleaded defences based upon
    statutes of limitation
, res judicata
,
laches
and acquiescence,
    since 1850 the Crown has been and remains legally obligated under the Robinson
    Huron Treaty of 1850 to increase the annuity under the Treaty from time to time
    if the territory subject to the Treaty produced or produces an amount which
    would enable it to do so without incurring loss, and that the size of the
    increase of the annuity is not limited to an amount based on one pound per
    person.

2. The plaintiffs acknowledge
    that in addressing this motion, the parties were permitted to address and seek
    determination of particular issues, including:

a) the meaning and legal effect
    of the phrase such further sum as Her Majesty may be graciously pleased to
    order in the written text of the Treaty;

b) whether the revenues that are
    to be taken into account in determining whether the territory subject to the
    Treaty produced or produces an amount which would enable it to do so without
    incurring loss are restricted to Crown revenues from the territory;

c) whether gross or net revenues
    are to be taken into account in determining whether the territory subject to
    the Treaty produced or produces an amount which would enable it to do so
    without incurring loss;

d) what principle or principles
    govern the determination of the amount of the increased annuities;

e) whether the provision that
    the amount paid to each individual shall not exceed the sum of one pound
    provincial currency ($4) in any one year, or such further sum as Her Majesty
    may be graciously pleased to order should be indexed for inflation;

ON BEING ADVISED
by counsel
    for the parties near the outset of the summary trial that there was no dispute
    regarding issues 2 (b) and 2 (c) noted above, and that in relation to those
    issues the parties were in agreement that the revenues that are to be taken
    into account in determining whether the territory subject to the Treaty
    produced or produces an amount which would enable it to do so without incurring
    loss are net Crown revenues from the territory;

AND ON BEING REQUESTED BY THE
    PARTIES
to make determinations on issues 1, 2 (a), (d) and (e) above, as
    set out in the plaintiffs notices of motion, but without engaging in a
    line-by­line identification of relevant revenues and expenses in the public
    accounts of Canada or Ontario;

AND ON BEING REQUESTED BY THE
    PLAINTIFFS
to make determinations under Issue 2 (d) above with respect to
    what types of Crown revenues and expenses are relevant for the purposes of
    Augmentation Clause, and on hearing submissions from counsel for the Attorney
    General for Canada (Canada) that such determinations should be deferred to
    the contemplated Stage 3 of this litigation, and from counsel for Her Majesty
    the Queen in right of Ontario and the Attorney General for Ontario, that the
    Court should make findings with respect to the intentions of the Treaty parties
    in 1850 regarding relevant revenues and expenses, but without reaching
    definitive determinations regarding relevant revenues and expenses on the
    limited evidence before the Court regarding modern public finances;

AND ON READING
the pleadings,
    the text of the Treaty, the numbered exhibits entered, the affidavits, expert
    reports and historical documents, filed, and on hearing the oral testimony of
    the witnesses, and on reading and hearing the submissions of counsel for the
    parties, and for reasons released on December 21, 2018 (2018 ONSC 7701):

[1]      THIS COURT ADJUDGES AND
    DECLARES THAT, considered apart from the pleaded defences based on statutes of
    limitation,
res judicata
and
laches
, including acquiescence, and
    without making a determination as to the respective responsibilities and
    liabilities of Canada and Ontario:

a) Pursuant to the Robinson Huron
    Treaty of 1850, the Crown is obligated to increase, and the First Nation Treaty
    Parties have a collective treaty right to have increased, from time to time,
    the promised annuity payment of £600 (or $2,400) if net Crown resource-based
    revenues from the Treaty territory permit the Crown to do so without incurring
    loss
, with the amount of annuity payable in any period to correspond to a
    fair share of such net revenues for that period
;

b) To fulfill its obligation in
    (a) above, the Crown:

i. is required to periodically
    engage in a process, in consultation with the First Nation Treaty parties, to
    determine the amount of net Crown resource-based revenues; and

ii. if there are sufficient Crown
    resource-based revenues, to permit the Crown to pay an increased annuity amount
    without incurring loss, is required to pay any such increase;

c) In fulfilling these
    obligations and requirements of the augmentation promise, the Crown is subject
    to the duties flowing from the honour of the Crown
and the fiduciary duty
      which the Crown owes to the First Nation Treaty parties
;

d) The Crown must diligently
    implement the augmentation promise
, so as to achieve the Treaty purpose of
    reflecting in the annuities a fair share of the value of the resources,
    including the land and water in the territory
;

e) The Crown shall, in a manner
  consistent with the honour of the Crown, consult with the First Nation Treaty
  parties to determine what portion, if any, of the increased annuity amount is
  to be distributed by the Crown to the individual Treaty rights holders in
  addition to the $4 per person per year they are already being paid;

f) The augmentation promise is a
  Treaty right recognized and affirmed by s. 35 of the
Constitution Act
,
  1982.

[2]      THIS COURT ADJUDGES AND
    DECLARES THAT the principles governing the Treaty parties implementation of
    the annuity provisions are to accord with this Courts determinations that:

a) the Robinson Huron Treaty was
    negotiated by the Treaty parties around the Anishinaabe Council Fire at
    Bawaating (Sault Ste Marie) as a renewal of the ongoing relationship between
    the Anishinaabeg and the Crown grounded in the Covenant Chain alliance, and as
    a basis for continuing a mutually respectful and beneficial relationship going
    into the future; and

b) the Treaty reflects the
    parties common intention that their agreement was to allow both the
    Anishinaabeg and the Crown to realize the future opportunities and potential of
    the Treaty territory in a manner consistent with the Anishinaabe principles of
    respect, responsibility, reciprocity and renewal and the intention of the Crown
    to act honourably, with justice or fairness, and with liberality or
    benevolence.

[3]      THIS COURT FURTHER ADJUDGES
    AND DECLARES THAT:

a) The process adopted for
    purposes of determining the amount of net Crown resource­ based revenues in a
    particular period must afford sufficient Crown disclosure of information to
    enable the First Nation Treaty parties and the Court, if necessary, to
    determine the amount of such net revenues;

b) For purposes of determining
    the amount of net Crown resource-based revenues in a particular period:

i. relevant revenues to be
    considered are Crown resource-based revenues arising directly or in a closely
    related way to the use, sale, or licensing of land (which could include the
    waters) in the Treaty territory, including mineral and lumbering revenues and
    other analogous revenues as received by the Crown both historically and in the
    future
, but not including personal, corporate or property tax revenues
,

ii. relevant expenses to be
    considered are Crown expenses related to collecting, regulating, and supporting
    relevant revenues
, but do not include the costs of infrastructure and
    institutions that are built with Crown tax revenues
,

with these definitions to be
    applied as general principles that are subject to clarification and further
    direction by the Court in a future stage of this proceeding; and

c) Failing agreement amongst the
     parties, the principles to be applied for purposes of determining amounts
     [added text - to be disbursed pursuant to the augmentation promise from]
that
       are fairly and reasonably equal to a fair share of

net
     Crown resource-based revenues are subject to further direction by the Court in
    a future stage of this proceeding.

d) Where in the exercise of their
     duties to implement the augmentation promise the Crown exercises discretion,
     the discretion must be exercised honourably, such discretion is not unfettered
     and is subject to review by the Courts.

[4]      THIS COURT FURTHER ORDERS
    AND ADJUDGES THAT the plaintiffs alternative claim, supported by Ontario, that
    the Court should imply a Treaty term to provide for indexing of the promised
    annuity payment of £600 (or $2,400), as augmented to an amount based on £1 (or
    $4) per person, in order to protect the First Nation Treaty parties against
    erosion of the purchasing power of annuities due to inflation be, and is
    hereby, dismissed.

[5]      AND THIS COURT FURTHER
    ORDERS AND ADJUDGES that the plaintiffs are hereby awarded their costs of this
    action to date, on the partial indemnity scale, without reserving to them any
    right to seek a higher level of indemnity at another time, and that pursuant to
    an agreement made between them, Canada and Ontario are each responsible to pay
    50 per cent of such costs, and:

a) that subject to paragraph
    4(b) below, the plaintiffs costs of this action to date, including this
    motion, are hereby fixed in the total amount of $9,412,447.50; and

b) that the plaintiffs may
    make further submissions to the Court with respect to the sum of $303,775.00
    they have claimed as further disbursements incurred by the Robinson Huron
    Trust. Should the plaintiffs make such further submissions, the defendants will
    be entitled to respond.

[6]      THIS JUDGMENT BEARS
    INTEREST at the rate of three per cent (3%) per year commencing on December 21,
    2018.

CHIEF AND COUNCIL OF
    RED ROCK FIRST NATION (Superior Action)

(PARTIAL JUDGMENT -
    STAGE ONE - RELEASED JUNE 17, 2019)

THROUGH NOTICES OF MOTION
for
    summary judgment brought in the within action the plaintiffs sought the
    following declaratory relief, and costs:

1. The plaintiffs move for a declaration that,
    considered apart from the pleaded defences based upon statutes of limitation,
res
    judicata
,
laches
and acquiescence, since 1850 the Crown has been and
    remains legally obligated under the Robinson Superior Treaty of 1850 to
    increase the annuity under the Treaty from time to time if the territory
    subject to the Treaty produced or produces an amount which would enable it to
    do so without incurring loss, and that the size of the increase of the annuity
    is not limited to an amount based on one pound per person.

2. The plaintiffs acknowledge that in addressing this
    motion, the parties were permitted to address and seek determination of
    particular issues, including:
a) the meaning and legal effect of the phrase such
    further sum as Her Majesty may be graciously pleased to order in the written
    text of the Treaty;
b) whether the revenues that are to be taken into
    account in determining whether the territory subject to the Treaty produced or
    produces an amount which would enable it to do so without incurring loss are
    restricted to Crown revenues from the territory;
c) whether gross or net revenues are to be taken into
    account in determining whether the territory subject to the Treaty produced or
    produces an amount which would enable it to do so without incurring loss;
d) what principle or principles govern the
    determination of the amount of the increased annuities;
e) whether the provision that the amount paid to each
    individual shall not exceed the sum of one pound provincial currency ($4) in
    any one year, or such further sum as Her Majesty may be graciously pleased to
    order should be indexed for inflation;
ON BEING ADVISED
by counsel
    for the parties near the outset of the summary trial that there was no dispute
    regarding issues 2 (b) and 2 (c) noted above, and that in relation to those
    issues the parties were in agreement that the revenues that are to be taken
    into account in determining whether the territory subject to the Treaty
    produced or produces an amount which would enable it to do so without incurring
    loss are net Crown revenues from the territory;
AND ON BEING REQUESTED BY THE
    PARTIES
to make determinations on issues 1, 2 (a), (d) and (e) above, as
    set out in the plaintiffs notices of motion, but without engaging in a
    line-by­ line identification of relevant revenues and expenses in the public
    accounts of Canada or Ontario;
AND ON BEING REQUESTED BY THE
    PLAINTIFFS
to make determinations under Issue 2 (d) above with respect to
    what types of Crown revenues and expenses are relevant for the purposes of
    Augmentation Clause, and on hearing submissions from counsel for the Attorney
    General for Canada (Canada) that such determinations should be deferred to
    the contemplated Stage 3 of this litigation, and from counsel for Her Majesty
    the Queen in right of Ontario and the Attorney General for Ontario, that the
    Court should make findings with respect to the intentions of the Treaty parties
    in 1850 regarding relevant revenues and expenses, but without reaching
    definitive determinations regarding relevant revenues and expenses on the
    limited evidence before the Court regarding modern public finances;
AND ON READING
the pleadings,
    the text of the Treaty, the numbered exhibits entered, the affidavits, expert
    reports and historical documents, filed, and on hearing the oral testimony of
    the witnesses, and on reading and hearing the submissions of counsel for the
    parties, and for reasons released on December 21, 2018 (2018 ONSC 7701):
[1]      THIS COURT ADJUDGES AND
    DECLARES THAT, considered apart from the pleaded defences based on statutes of
    limitation,
res judicata
and
laches
, including acquiescence, and
    without making a determination as to the respective responsibilities and
    liabilities of Canada and Ontario:
a) Pursuant to the Robinson
    Superior Treaty of 1850, the Crown is obligated to increase, and the First
    Nation Treaty Parties have a collective treaty right to have increased, from
    time to time, the promised annuity payment of £500 (or $2,000) if net Crown
    resource-based revenues from the Treaty territory permit the Crown to do so
    without incurring loss
, with the amount of annuity payable in any period to
    correspond to a fair share of such net revenues for that period
;
b) To fulfill its obligation in
    (a) above, the Crown:
i. is required to periodically
    engage in a process, in consultation with the First Nation Treaty parties, to
    determine the amount of net Crown resource-based revenues; and
ii. if there are sufficient Crown
   resource-based revenues, to permit the Crown to pay an increased annuity amount
   without incurring loss, is required to pay any such increase;
c) In fulfilling these
    obligations and requirements of the augmentation promise, the Crown is subject
    to the duties flowing from the honour of the Crown
and the fiduciary duty
    which the Crown owes to the First Nation Treaty parties
;
d) The Crown must diligently
   implement the augmentation promise
, so as to achieve the Treaty purpose of
     reflecting in the annuities a fair share of the value of the resources,
    including the land and water, in the territory
;
e) The Crown shall, in a manner
   consistent with the honour of the Crown, consult with the First Nation Treaty
   parties to determine what portion, if any, of the increased annuity amount is
   to be distributed by the Crown to the individual Treaty rights holders in
   addition to the $4 per person per year they are already being paid;
f) The augmentation promise is a
   Treaty right recognized and affirmed by s. 35 of the
Constitution Act
,
   1982.
[2]      THIS COURT ADJUDGES AND
    DECLARES THAT the principles governing the Treaty parties implementation of
    the annuity provisions are to accord with this Courts determinations that:
a) the Robinson Superior Treaty
    was negotiated by the Treaty parties around the Anishinaabe Council Fire at
    Bawaating (Sault Ste Marie) as a renewal of the ongoing relationship between
    the Anishinaabeg and the Crown grounded in the Covenant Chain alliance, and as
    a basis for continuing a mutually respectful and beneficial relationship going
    into the future; and
b) the Treaty reflects the
    parties common intention that their agreement was to allow both the
    Anishinaabeg and the Crown to realize the future opportunities and potential of
    the Treaty territory in a manner consistent with the Anishinaabe principles of
    respect, responsibility, reciprocity and renewal and the intention of the Crown
    to act honourably, with justice or fairness, and with liberality or
    benevolence.
[3]      THIS COURT FURTHER ADJUDGES
    AND DECLARES THAT:
a) The process adopted for
    purposes of determining the amount of net Crown resource­ based revenues in a
    particular period must afford sufficient Crown disclosure of information to
    enable the First Nation Treaty parties and the Court, if necessary, to
    determine the amount of such net revenues;
b) For purposes of determining
    the amount of net Crown resource-based revenues in a particular period:
i. relevant revenues to be
    considered are Crown resource-based revenues arising directly or in a closely
    related way to the use, sale, or licensing of land (which could include the
    waters) in the Treaty territory, including mineral and lumbering revenues and
    other analogous revenues as received by the Crown both historically and in the
    future
, but not including personal, corporate or property tax revenues
,
ii. relevant expenses to be
    considered are Crown expenses related to collecting, regulating, and supporting
    relevant revenues
, but do not include the costs of infrastructure and
    institutions that are built with Crown tax revenues
,
with these definitions to be
    applied as general principles that are subject to clarification and further
    direction by the Court in a future stage of this proceeding; and
c) Failing agreement amongst the
    parties, the principles to be applied for purposes of determining amounts
    [added text - to be disbursed pursuant to the augmentation promise from]
that
    are fairly and reasonably equal to a fair share of
net Crown resource-based
    revenues are subject to further direction by the Court in a future stage of this
    proceeding.
d) Where in the exercise of their
    duties to implement the augmentation promise the Crown exercises discretion,
    the discretion must be exercised honourably, such discretion is not unfettered
    and is subject to review by the Courts.
[4]      THIS COURT FURTHER ORDERS
    AND ADJUDGES THAT the plaintiffs alternative claim, supported by Ontario, that
    the Court should imply a Treaty term to provide for indexing of the promised
    annuity payment of £500 (or $2,000), as augmented to an amount based on £1 (or $4)
    per person, in order to protect the First Nation Treaty parties against erosion
    of the purchasing power of annuities due to inflation be, and is hereby,
    dismissed.
[5]      AND THIS COURT FURTHER
    ORDERS AND ADJUDGES that the plaintiffs are hereby awarded their costs of this
    action to date, on the partial indemnity scale, without reserving to them any
    right to seek a higher level of indemnity at another time, and that pursuant to
    an agreement between them, Canada and Ontario are each responsible to pay 50 per
    cent of such costs, with the plaintiffs costs of this action to date,
    including this motion, being hereby fixed in the total amount of $5,148,894.45.
[6]      THIS JUDGMENT BEARS
    INTEREST at the rate of three per cent (3%) per year commencing on December 21,
    2018.

[1]
Stage One Reasons, at para. 31.


[2]
Stage One Reasons, at para. 89.


[3]
Stage One Reasons, at para. 73. The term Aboriginal or aboriginal is found
    in s. 35 of the
Constitution Act, 1982
and much of the jurisprudence.
    In these reasons, we use the term Aboriginal or aboriginal when referring
    to this jurisprudence. In addition, we also use the term Indigenous.


[4]
Stage One Reasons, at para. 79.


[5]
Stage One Reasons, at para. 118.


[6]
Stage One Reasons, at para. 181.


[7]
Stage One Reasons, at para. 190.


[8]
Stage One Reasons, at paras. 201-3.


[9]
Stage One Reasons, at para. 209.


[10]
Stage One Reasons, at para. 214.


[11]
Stage One Reasons, at para. 223.


[12]
Stage One Reasons, at para. 218.


[13]
Stage One Reasons, at para. 220.


[14]
Stage One Reasons, at para. 226.


[15]
See Stage One Reasons, at Appendices A and B; Canada,
Indian Treaties and
    Surrenders: From 1680 to 1890
, vol. 1 (Ottawa: Brown Chamberlin, 1891).


[16]
See Stage One Reasons, at para. 238. See also Canada, at p. 147.


[17]
See Stage One Reasons, at para. 239. See also Canada, at p. 147.


[18]
See Stage One Reasons, at para. 243. See also Canada, at p. 148.


[19]
See Stage One Reasons, at para. 240. See also Canada, at p. 149.


[20]
See Stage One Reasons, at para. 241. See also Canada, at p. 149.


[21]
See Stage One Reasons, at para. 243. See also Canada, at p. 150.


[22]

Province of Ontario v. Dominion of Canada
(1895), 25 S.C.R. 434.


[23]

Attorney-General for the Dominion of Canada v. Attorney-General for Ontario
,
    [1897] A.C. 199 (J.C.P.C.).


[24]
Stage One Reasons, at para. 3.


[25]
Stage One Reasons, at paras. 3, 568-70.


[26]
Stage One Reasons, at para. 397.


[27]
Stage One Reasons, at paras, 3, 533 and 568.


[28]
Stage One Reasons, at paras. 551-54.


[29]
Stage One Reasons, at para. 598.


[30]

R. v. Marshall
, [1993] S.C.R. 456, at paras. 82-83.


[31]
Stage One Reasons, at paras. 398-410.


[32]
Stage One Reasons, at paras. 410-58


[33]
Stage One Reasons, at para. 423.


[34]
Stage One Reasons, at paras. 430-32.


[35]
Stage One Reasons, at para. 318.


[36]
Stage One Reasons, at paras. 459-61.


[37]
Stage One Reasons, at para. 462.


[38]
Stage One Reasons, at paras. 468-70.


[39]
Stage One Reasons, at paras. 3, 538.


[40]
Stage One Reasons, at para. 533.


[41]
Stage One Reasons, at paras. 568-69.


[42]
Stage One Reasons, at para. 512.


[43]
Stage One Reasons, at paras. 522-26.


[44]
Stage One Reasons, at para. 527.


[45]
Stage One Reasons, at para. 553.


[46]
Stage One Reasons, at paras. 544-72.


[47]
Stage One Reasons, at para. 588.


[48]
Stage One Reasons, at para. 593.


[49]
Stage One Reasons, at para. 595.


[50]

Stage One Costs Reasons, at para. 43.


[51]

Proceedings Against the Crown Act, 1962-63
, S.O. 1962-63, c. 109 (
PACA
);
    Stage Two Reasons, at paras. 13-87.


[52]

Limitations Act
, R.S.O. 1990, c. L.15 (the 1990
Limitations Act
);
    Stage Two Reasons, at paras. 109-201.


[53]

Nowegijick v. The Queen
, [1983] 1 S.C.R. 29;
Stage
    Two Reasons, at paras. 202-38.


[54]

R. v. Marshall
, [1999] 3 S.C.R. 456.


[55]

Stage One
Reasons, at para. 244.


[56]

Stage One Reasons, at paras. 321-29.


[57]

Marshall
, at paras. 9-14,
per
Binnie J., and as summarized at
    paras. 78-83,
per
McLachlin J. (dissenting, but not on this point).


[58]

Marshall
, at para. 14,
per
Binnie J. (emphasis in the
    original), citing
R. v. Sioui
, [1990] 1 S.C.R. 1025, at p.
    1069,
per
Lamer J., and see, in
Marshall
,
McLachlin J.s restatement, at
    paras. 78(3)-(4), 83.


[59]

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)
,
    2005 SCC 69, [2005] 3 S.C.R. 388 (
Mikisew Cree
(2005)), at para. 28,
per
Binnie J.


[60]

R. v. Taylor and Williams
(1981), 62 C.C.C. (2d) 227 (Ont. C.A.), at
    p. 236,
per

MacKinnon
    A.C.J.O., leave to appeal refused, [1981] 2 S.C.R. xi.


[61]

Taylor and Williams
, at p. 236.


[62]

Taylor and Williams
, at p. 236.


[63]

Marshall
, at para. 11,
per

Binnie J. The Supreme Court
    has approved the approach in
Taylor and Williams
on many occasions and
    has never doubted it: see e.g.,
Marshall
;
Sioui
;
R. v. Sparrow
,
    [1990] 1 S.C.R. 1075; and
Delgamuukw v. British Columbia
, [1997] 3
    S.C.R. 1010.


[64]

Marshall
, at para. 14,
per

Binnie J. (citations
    omitted).


[65]

Marshall
, at para. 78(5),

per
McLachlin J.


[66]

Beckman v. Little Salmon/Carmacks First Nation
,
2010 SCC 53, [2010] 3 S.C.R. 103, at
    para. 9,

per
Binnie J. See also Dwight Newman, Contractual and
    Covenantal Conceptions of Modern Treaty Interpretation (2011) 54 S.C.L.R. (2d)
    475.


[67]

Stage One Reasons, at para. 399, and see para. 349.


[68]

Manitoba Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC 14, [2013] 1 S.C.R. 623
, at
    para. 76.


[69]

Mikisew Cree First Nation v. Canada (Governor General in Council)
,
2018 SCC 40, [2018] 2 S.C.R. 765 (
Mikisew
    Cree
(2018)), at para. 28,

per
Karakatsanis J.


[70]

Little Salmon
, at para. 10,
per
Binnie
    J.


[71]

Mikisew Cree
(2018)
,
    at para. 22,
per
Karakatsanis J.


[72]

Mikisew Cree
(2005)
,
    at para. 1,
per

Binnie J.


[73]

Mikisew Cree
(2018), at para. 21. See also
Haida Nation v. British
    Columbia (Minister of Forests)
,
2004 SCC 73, [2004] 3 S.C.R. 511, at para. 32.


[74]

Mikisew Cree
(2005)
,
    at para. 1,
per
Binnie J. The Crowns assertion of sovereignty gives
    rise to the obligation to treat aboriginal peoples fairly and honourably, and
    to protect them from exploitation:
Mitchell v. M.N.R.
, 2001 SCC 33,
    [2001] 1 S.C.R. 911, at para. 9,
per

McLachlin C.J.


[75]

Manitoba Metis
, at para. 71,
per
McLachlin C.J. and Karakatsanis J.


[76]

Mikisew Cree
(2018)
,
    at para. 22,
per

Karakatsanis
    J.


[77]

Little Salmon
, at para. 42,
per
Binnie J., and at para. 105,
per

Deschamps J.;
Manitoba Metis
,

at para. 69,
per

McLachlin C.J. and Karakatsanis J.; and
Mikisew Cree
(2018),
at para. 24,

per
Karakatsanis J.


[78]

Haida Nation
, at para. 45.


[79]

Mikisew Cree
(2005), at para. 28;
Sioui
, at p. 1035.


[80]

Stage One Reasons, at para. 412.


[81]

Stage One Reasons, at para. 423.


[82]

Stage One Reasons, at para. 347, and see para. 373.


[83]

Stage One Reasons, at para. 3.


[84]

Stage One Reasons, at para. 459.


[85]

Stage One Reasons, at para. 397.


[86]

Stage One Reasons, at para. 460 (emphasis in the original).


[87]

Stage One Reasons, at para. 456.


[88]

Stage One Reasons, at para. 461, and see para. 397.


[89]

Stage One Reasons, at para. 461.


[90]

Stage One Reasons, at para. 461.


[91]

Stage One Reasons, at para. 462.


[92]

Stage One Reasons, at para. 465.


[93]

Our reasons, at paras. 196-205.


[94]

Canada v. South Yukon Forest Corporation
, 2012 FCA 165, 431 N.R. 286,
    at para. 46,
per
Stratas J.A. (citations omitted). This paragraph was
    quoted in full and approved by the majority in
Benhaim v. St-Germain
,
    2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38.


[95]

Stage One
Reasons, at para. 200.
The
    trial judge notes, at para. 101, that in 1818, the Crown moved to an annuity
    model in making treaties. Between 1818 and 1850, annuities were generally
    expressed as an aggregate amount, based on multiplying the First Nations
    population at the time the treaty was made by roughly two and a half pounds
    (equivalent to $10): Stage One Reasons, at para. 102.


[96]

Stage One Reasons, at para. 203.


[97]

Stage One Reasons, at para. 261.


[98]

Stage One Reasons, at para. 255.


[99]

Stage One Reasons, at para. 161.


[100]

Stage One Reasons, at para. 251 (emphasis added).


[101]

Stage One Reasons, at paras. 450-453.


[102]
Ex
pert Report of James Morrison, Exhibit 14, at para. 59 on p.
    53. According to Mr. Morrison, expert witness for the Huron Plaintiffs,
    Robinson was well aware of this system and its use in more southerly parts of
    the Province: Expert Report of James Morrison, Exhibit 14, at para. 368 on p.
    284.


[103]

Transcript, Vol. 50, at pp. 7340-41.


[104]

Robinsons reference to the practice of calculating annuities
    based on population, not land area, as being the same conditions as all
    preceding ones is consistent with the historical evidence. The trial judge
    noted, at para. 102 of her reasons, that between 1818 and 1850, annuities
    tended to be an aggregate amount based on multiplying the population of the
    First Nation by $10. She states [t]he multiplier of $10 was unrelated to the
    value or size of the land surrendered.


[105]

Sioui
, at p. 1060.


[106]

Lac La Ronge Indian Band v. Canada
, 2001
    SKCA 109, 206 D.L.R. (4th) 638, at para. 103, revg 1999 SKQB 218, 188 Sask. R.
    1, leave to appeal refused, [2001] S.C.C.A. No. 647. Vancise J.A. agreed with
    the trial judge in that case that evidence of subsequent conduct should be
    used with extreme caution.


[107]

West Moberly First Nations v. British Columbia
, 2020 BCCA 138, 37
    B.C.L.R. (6th) 232, at para. 231, leave to appeal refused, [2020] S.C.C.A. No.
    252.


[108]

Lac La Ronge
, at para. 103.


[109]

Shewchuk v. Blackmont Capital Inc.
, 2016 ONCA 912,
    404 D.L.R. (4th) 512.


[110]

Stage One Reasons, at para. 284.


[111]

Stage One Reasons, at para. 318.


[112]

Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 91, 128. See also
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 34, 37 and 43.


[113]
To give it its full name, the 
Report of Special Commissioners
    (R.T. Pennefather, Froome Talfourd, and Tho. Washington) appointed on the 8
th
of September, 1856, to Investigate Indian Affairs in Canada.


[114]

They stated: Enquiries at the Crown Land Department shew that
    no increase in the annuity is yet warranted by the sums realized from the
    surrendered lands.


[115]

Stage One Reasons, at para. 305.


[116]

Stage One Reasons, at para. 315.


[117]

Ontario conceded that Blakes opinion arose from him looking
    at the documents and at the wording of the Treaties.


[118]

Stage One Reasons, at paras. 307-13.


[119]

Province of Ontario v. Dominion of Canada
(1895), 25 S.C.R. 434,
    affd
Attorney-General for the Dominion of
Canada v. Attorney-General
    for Ontario
, [1897] A.C. 199 (J.C.P.C.).


[120]

Lac La Ronge
, at para.
106.


[121]

Award on Indian Robinson Treaties, Huron and Superior
, February 14,
    1895 (J.A. Boyd, Sir L.N. Casault, and G.W. Burbidge), as reproduced in the
    notes preceding the Supreme Court of Canadas judgment on the appeal of the arbitrators
    award:
Province of Ontario
, at p. 456.


[122]

Transcripts from the Unsettled Accounts Arbitration, at pp.
    365-66.


[123]

Spragge stated, the Robinson Treaties  do not contemplate
    that in the event of the annuities being augmented, the numbers to receive them
    shall exceed those at which the various bands were estimated when the treaties
    were executed.


[124]

Stage One Reasons, at para. 562.


[125]

Baker v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817,

at para. 52


[126]

Roncarelli v. Duplessis
, [1959] S.C.R. 121, at p.
    140,

per

Rand J.


[127]

Baker
, at para. 56.


[128]

Baker
, at para. 53.


[129]

Stage One Reasons, at paras. 527, 532 and 569.


[130]

Stage One Reasons, at para. 454.


[131]

Stage One Reasons, at para. 4.


[132]

This was also Canadas position before the trial judge, as she
    noted in her reasons, at para. 382.


[133]

Hupacasath First Nation v. Canada
, 2015 FCA 4, 379
    D.L.R. (4th) 737, at para. 66. In
Hupacasath
,
    Stratas J.A. found that the application for judicial review was justiciable
    because, although the challenge was to the decision to sign an international
    treaty, the case turned on whether the appellant had certain legal rights. In
Wenham
    v. Canada (Attorney General)
, 2018 FCA 199, 429 D.L.R.
    (4th) 166, at paras. 58-63, Stratas J.A. addressed justiciability and concluded
    that a class action seeking to quash a federal program to compensate victims of
    Thalidomide on the basis that the documentary proof requirements were
    unreasonable was justiciable. In
Hupacasath

and
Wenham
, Stratas J.A. followed
Operation
    Dismantle v. The Queen
, [1985] 1 S.C.R. 441.


[134]

Tanudjaja, v. Canada (Attorney General)
, 2014 ONCA 852, 123 O.R. (3d)
    161, at paras. 27, 33, leave to appeal refused, [2015] S.C.C.A. No. 39.


[135]

Tanudjaja
, at para. 33.


[136]

Tanudjaja
, at para. 35.


[137]
See
Hupacasath First Nation
, at para. 70.


[138]

Stage One Reasons, at para. 447 (emphasis added).


[139]

See Ontarios Written Closing Submissions in Stage One Trial,
    Exhibit MM, pp. 206-10. We have rejected this argument on Robinsons
    understanding of the augmentation clause at paras. 140-43 of these reasons.


[140]

Stage One Reasons, at para. 438.


[141]

Stage One Reasons, at para. 439.


[142]

Stage One Reasons, at para. 442.


[143]

Stage One Reasons
, at para. 442.


[144]

Ontarios Written Closing Submissions in Stage One Trial,
    Exhibit MM, at para. 369.


[145]

Stage One Reasons, at para. 446.


[146]

This kind of discretion is equally incomprehensible in
    Canadian law, as explained at paras. 192-93 of these reasons.


[147]

Marshall
, at para. 50.


[148]
Thomas Isaac, in
Aboriginal Law
, 5th ed. (Thomson Reuters: Toronto,
    2016), at p. 341, discusses two cases, dating back to 1608 and 1613, where the
    Kings honour was applied to disputes outside the Aboriginal law context:
St.
    Saviour in Southwark (Churchwardens case)

(1613), 77 E.R. 1025
    (Eng. K.B.); and
Rutlands (Earl) Case

(1608), 77 E.R. 555
    (Eng. K.B.).


[149]

Manitoba Metis
, at para. 66,

per
Abella J.;
Little
    Salmon
, at para. 42; and
Mikisew Cree
(2018), at para. 21.


[150]

Haida Nation
, at para. 32;
Manitoba Metis
, at paras. 58-59,
per
Abella J.


[151]

Haida Nation
, at para. 17 (citations omitted).


[152]

Haida Nation
, at para. 45.


[153]

Marshall
, at paras. 49, 51,
per

Binnie J. This
    statement is repeated often. The Supreme Court of Canada used the phrase most
    recently in
Newfoundland and Labrador (Attorney General) v. Uashaunnuat
    (Innu of Uashat and of Mani-Utenam)
,
    2020 SCC 4, at para. 22.


[154]

Haida Nation
, at para. 16; and see
Manitoba Metis
,
at paras. 73-74.


[155]

Haida Nation
, at para. 19.


[156]

Little Salmon
,

at para. 42.


[157]

Taku River Tlingit First Nation v. British Columbia (Project Assessment
    Director)
, 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24.


[158]

Manitoba Metis
, at para. 73.


[159]

Manitoba Metis
, at para. 73.


[160]

Manitoba Metis
, at para. 143;
Mikisew Cree
(2018), at para.
    47.


[161]

Brian Slattery, Aboriginal Rights and the Honour of the
    Crown (2005) 29 S.C.L.R. (2d) 433, at p. 436.


[162]
Jamie D. Dickson,
The Honour and Dishonour of the
    Crown: Making Sense of Aboriginal Law in Canada
(Saskatoon: Purich
    Publishing Limited, 2015), at p. 10. Abella J. cited Dickson, in
Mikisew
    Cree
(2018), at para. 71, for the proposition that 
Haida Nation

established a new legal framework in which to understand the governments
    obligations towards Indigenous peoples, organized around the principle of the
    honour of the Crown.


[163]

Dickson, at pp. 20-21.


[164]

Mikisew Cree

(2018), at para. 28 (citations omitted).


[165]

Haida Nation
, at para. 18.


[166]

Manitoba Metis
, at para. 74.


[167]

Manitoba Metis
, at para. 73(1).


[168]

Manitoba Metis
, at para. 64.


[169]

Manitoba Metis
, at para. 133.


[170]

Haida Nation
, at para. 54. See also
Mikisew Cree

(2005),
    at para. 51.


[171]

Guerin v. The Queen
, [1984] 2 S.C.R. 335;
Grassy Narrows First
    Nation v. Ontario (Natural Resources)
, 2014 SCC 48, [2014] 2 S.C.R. 447; and
Southwind v. Canada
, 2021 SCC 28, 459 D.L.R. (4th) 1.


[172]
On the duty to consult, see
Haida Nation
, at para. 54, and
Mikisew
    Cree
(2005), at para. 51.


[173]

Manitoba Metis
, at para. 76


[174]

Manitoba Metis
, at para. 78.


[175]

Manitoba Metis
, at para. 97, and see para. 75.


[176]

Manitoba Metis
, at para. 73(4);
Mikisew Cree
(2018), at para.
    28.


[177]

Manitoba Metis
, at para. 81.


[178]

Manitoba Metis
, at para. 80.


[179]

Manitoba Metis
, at para. 82.


[180]

Stage One Reasons, at para. 538.


[181]

Stage One Reasons, at para. 538.


[182]

Stage One Reasons, at paras. 3, 355, 369, 374 and 499.


[183]

Stage One Reasons, at paras. 500-2.


[184]

Stage One Reasons, at para. 505, citing

Peter Ballantyne Cree Nation v. Canada (Attorney
    General)
, 2016 SKCA 124, 485 Sask. R. 162, leave to appeal refused,
    [2017] S.C.C.A. No. 95.


[185]

Stage One Reasons, at para. 504.


[186]

Stage One Reasons,
at para. 393.


[187]

Stage One Reasons, at para. 495.


[188]

Stage One Reasons, at para. 587.


[189]

Stage One Reasons, at para. 589.


[190]

Stage One Reasons, at para. 538.


[191]

Stage One Reasons, at para. 3.


[192]

Stage One Reasons, at para. 3.


[193]

R. v. Agawa

(1988), 53 D.L.R. (4th) 101 (Ont.
    C.A.), at p. 120, leave to appeal refused, [1988] S.C.C.A. No. 501.


[194]
Isaac,
at p. 344.


[195]

Manitoba Metis
, at para. 83.


[196]

Stage One Reasons, at para. 505.


[197]

Stage One Reasons, at para. 499.


[198]

Stage One Reasons, at para. 504.


[199]

Stage One Reasons, at para. 505.


[200]

Peter Ballantyne Cree Nation
, at para. 83, citing Dickson, at p. 91.


[201]
See e.g.,
Watson v. Canada
, 2020 FC 129 (in which only declaratory
    relief was granted);
Yahey. v. British Columbia
, 2021 BCSC 1287; and

Manitoba Metis
, which

concerned constitutional obligations
    contained in the
Manitoba Act
,
1870
, S.C. 1870, c. 3, rather than
    a treaty promise.


[202]

Manitoba Metis
, at para. 81.


[203]
Stage One Reasons, at para. 594.


[204]
Stage One Reasons, at para. 586.


[205]
Stage One Reasons, at para. 592.


[206]
Stage One Reasons, at para. 596.


[207]
Stage One Reasons, at para. 597.


[208]

Marshall
, at para. 43.


[209]

Marshall
, at para. 52.


[210]

Marshall
, at para. 4.


[211]

Energy Fundamentals Group Inc. v. Veresen Inc.
, 2015 ONCA 514, 388
    D.L.R. (4th) 672, at para. 34, quoting
Attorney General of Belize & Ors
    v. Belize Telecom Ltd & Anor
, [2009] UKPC 10, [2009] 2 All E.R. 1127,
    at para. 22.


[212]

Energy Fundamentals Group Inc.
, at paras. 35-36.


[213]

Marshall
, at para. 52.


[214]

Stage One Reasons, at para. 399.


[215]

Stage One Reasons, at para. 349 (emphasis in the original).


[216]

Stage One Reasons, at para. 324(9).


[217]

Stage One Reasons, at para. 536.


[218]

Little Salmon
, at para. 12.


[219]

Stage One Reasons, at paras. 492-94.


[220]

Taku River
, at para. 24.


[221]

Stage One Reasons, at para. 563.


[222]

Stage One Reasons, at para. 567.


[223]

Stage One Reasons, at paras. 570, 571, and see para. 572, in
    which the trial judge notes that a better definition of the contents of the
    duty to consult must be left to another stage in the litigation.


[224]
Canada somewhat moderated its recalcitrance during the hearing before the trial
    judge:
see Stage One Reasons, at para. 490.


[225]

Stage
    One Reasons, at para. 492 (footnote omitted), and see paras. 378, 391, 481 and
    491-97.
The trial judge was alive to the
    advantages of negotiation. The Supreme Court has often sounded its preference
    for negotiation over litigation, motivated by negotiations promise of
    reconciliation, which is the grand purpose

of
    s. 35 of the
Constitution Act, 1982
,
most recently in
R. v. Desautel
, 2021 SCC 17, 456 D.L.R. (4th) 1, at para. 87,
per

Rowe J. But there must be a will.


[226]

Stage One
Reasons, at para. 540.


[227]

Stage One Reasons, at para. 541.


[228]

Stage One
Reasons, at para. 541.


[229]

Stage One Reasons, at para. 541.


[230]

Stage One
Reasons, at para. 547.


[231]

Stage One
Reasons, at para. 549.


[232]

Stage One
Reasons, at para. 553.


[233]

Stage One
Reasons, at para. 554.


[234]

Stage One Reasons, at para. 461 (emphasis added).


[235]

Stage One Reasons, at para. 466.


[236]

Stage One Reasons, at para. 423.


[237]

Stage One Reasons, at para. 32.


[238]

Stage One Reasons, at para. 48.


[239]

Stage One Reasons, at para. 48.


[240]

Stage One Reasons, at para. 49.


[241]

Stage One Reasons, at para. 50.


[242]

Stage One Reasons, at para. 420.


[243]

Stage One Reasons, at para. 126.


[244]

Stage One Reasons, at para. 246.


[245]

Stage One Reasons, at para. 131.


[246]

Stage One Reasons, at para. 134.


[247]

Stage One Reasons, at para. 330.


[248]

Stage One Reasons, at para. 467, and see para. 161.


[249]

Stage One Reasons, at para. 134.


[250]

Stage One Reasons, at para. 146.


[251]

Stage One
Reasons, at para. 150.


[252]

Stage One Reasons, at para. 161.


[253]

Stage One Reasons, at para. 167.


[254]

Stage One Reasons, at para. 167.


[255]

Stage One Reasons, at para. 171.


[256]

Stage One Reasons, at para. 174.


[257]

Stage One Reasons, at para. 176.


[258]

Stage One Reasons, at paras. 469-70.


[259]

Stage One Reasons, at para. 362.


[260]

Stage One Reasons, at para. 535.


[261]

Stage One Reasons
, at para. 556. The Huron Plaintiffs
    argued on the motions and before this court that Crown revenues represent only
    a fraction of the wealth generated by the territory.


[262]

Stage One Reasons, at para. 560.


[263]

Stage One Reasons, at paras. 555-61.


[264]

Stage One Reasons, at para. 559.


[265]

Stage One Reasons, at para. 461.


[266]

Stage One Reasons, at para. 397. See also
Huron Action
    Stage One Partial Judgment, at para. 1(e); Superior Action Stage One Partial
    Judgment, at para. 1(e).


[267]

Familiar figures of speech are used in legal rhetoric to
    prompt the intuitive adoption of a favourable schema because they are often
    unthinkingly accepted. This is a form of narrative priming: see
Linda L. Berger
    & Kathryn M. Stanchi,

Legal Persuasion: A Rhetorical Approach to the
    Science
(London and New York: Routledge, 2018) at pp. 84, 109.


[268]

Appeal Book, Tab 4.a.1, para. 1(l).


[269]

Appeal Book, Tab 4.a.1, para. 123 (emphasis added).


[270]
Opening Submissions of the Huron Plaintiffs, Joseph Arvay, September 25, 2017,
    Transcript, Vol. 1, at p. 23.


[271]
Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26,
    2017, Transcript, Vol. 2, at p. 141.


[272]
Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26,
    2017, Transcript, Vol. 2, at p. 142.


[273]

Closing Submissions of the Huron Plaintiffs, Joseph Arvay,
    June 4, 2018, Transcript, Vol. 68, at p. 10,048.


[274]
Closing Submissions of the Superior Plaintiffs, Harley Schachter, June 7, 2018,
    Transcript, Vol. 71, at p. 10,524.


[275]

Closing Submissions of the Superior Plaintiffs, Harley
    Schachter, June 6, 2018, Transcript, Vol. 70, at pp. 10,307-8.


[276]

Address of Chief Shingwaukonse to Lord Cathcart, June 10,
    1846, Exhibit 01-0437.


[277]

Stage One Reasons, at para. 593.


[278]

Stage One Reasons, at para. 417.


[279]

Stage One Reasons, at para. 536.


[280]

Stage One Reasons, at para. 350.


[281]

Stage One Reasons
, at para. 393
, but
    see her strong words quoted at para. 243 of these reasons.


[282]

First Nation of Nacho Nyak Dun v. Yukon
, 2017 SCC 58, [2017] 2 S.C.R.
    576
, at para. 60.


[283]

Little Salmon
, at para. 12.


[284]

Nacho Nyak Dun
, at para. 36.


[285]

Stage One Reasons
, at fn. 279.


[286]

Rules of Civil Procedure
,
R.R.O. 1990, Reg.
    194,
r. 6.1.01. Rule 6.1.01 states that: With the consent of
    the parties, the court may order a separate hearing on one or more issues in a
    proceeding, including separate hearings on the issues of liability and
    damages. This rule precludes making [a bifurcation] order without the consent
    of the parties:
Duggan v. Durham Region Non-Profit Housing
    Corporation
, 2020 ONCA 788, 454 D.L.R. (4th) 496, at
    para. 38.


[287]

Nacho Nyak Dun
, at para. 60.


[288]

Clyde River (Hamlet) v. Petroleum Geo-Services Inc.
, 2017 SCC 40, [2017] 1 S.C.R. 1069
, at para. 24.


[289]
Stage One Costs Reasons, at para. 43.


[290]
Stage One Costs Reasons, at para. 16.


[291]
Stage One Costs Reasons, at paras. 17-22.


[292]
Stage One Costs Reasons, at para. 23.


[293]
Stage One Costs Reasons, at para. 24.


[294]
Stage One Costs Reasons, at para. 25.


[295]

Barresi v. Jones Lang Lasalle Real Estate Services Inc.
, 2019 ONCA
    884, 58 C.P.C. (8th) 318, at para. 14.


[296]

Nolan v. Kerry (Canada) Inc.
, 2009 SCC 39, [2009] 2 S.C.R. 678, at
    para. 126.


[297]
See
Walker v. Ritchie
, 2006 SCC 45, [2006] 2 S.C.R. 428, at para. 17;
Frazer
    v. Haukioja
,
2010 ONCA 249, 101 O.R. (3d) 528, at para. 75.


[298]

Frazer
,
at para. 75.


[299]

Bondy-Rafael v. Potrebic
, 2019 ONCA 1026, 441 D.L.R. (4th) 658, at
    para. 57.


[300]
See e.g.,
Whitfield v. Whitfield
, 2016 ONCA 720, 133 O.R. (3d) 753, at
    para. 29.


[301]

Wasserman, Arsenault Ltd. v. Sone
(2002), 164 O.A.C. 195 (C.A.), at
    para. 5.


[302]

British Columbia (Minister of Forests) v. Okanagan Indian Band
, 2003
    SCC 71, [2003] 3 S.C.R. 371, at paras. 16, 47, affg 2001 BCCA 647, 95 B.C.L.R.
    (3d) 273.


[303]
The Superior Plaintiffs say that Ontario understates the time it actually
    spent. Ontario did not dispute this assertion during oral arguments, but the
    record does not permit this court to review Ontarios calculation.


[304]
Stage One Costs Reasons, at paras. 6-7.


[305]

Boucher v. Public Accountants Council (Ontario)
(2004),

71 O.R. (3d) 291
    (C.A.), at para. 24, citing
Zesta Engineering Ltd. v. Cloutier
(2002),
    21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.


[306]

Murano v. Bank of Montreal

(1998), 163 D.L.R. (4th) 21 (Ont.
    C.A.), at para. 100.


[307]
Our reasons, at p
ara. 100.


[308]

R. v. Marshall
, [1999] 3 S.C.R. 456.


[309]

Stage One Reasons, at para. 3.


[310]
Stage One Reasons, at para. 3.


[311]
Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage
    One Partial Judgment, at para. 1(d).


[312]

Stage One Reasons, at paras. 15-61.


[313]

Stage One Reasons, at paras. 62-207.


[314]

Stage One Reasons, at paras. 208-37.


[315]

Stage One Reasons, at para. 14, citing
Marshall
, at para. 11.


[316]
Stage One Reasons, at paras. 281-320.


[317]
Stage One Reasons, at para. 318.


[318]

Stage One Reasons, at para. 324, citing
Marshall
, at para. 78.


[319]

Stage One Reasons, at para. 327.


[320]

Stage One Reasons, at para. 328, citing
Marshall
, at para. 82.


[321]
Stage One Reasons at para. 328.


[322]
Stage One Reasons, at para. 329 (footnote omitted), citing
Marshall
, at para. 83
..


[323]

Stage One Reasons, at para. 330.


[324]

Stage One Reasons, at para. 331.


[325]
Stage One Reasons, at para. 331, quoting
Marshall
, at
    para. 83
.


[326]
Stage One Reasons, at para. 338.


[327]

Stage One Reasons, at paras. 343, 347.


[328]

Stage One Reasons, at para. 343.


[329]

Stage One Reasons, at paras. 345-46.


[330]

Stage One Reasons, at paras. 352-91.


[331]

Stage One Reasons, at paras. 351, 395-97.


[332]
Stage One Reasons, at para. 397.


[333]

Stage One Reasons, at Part X.A.


[334]
Stage One Reasons, at para. 400.


[335]

Stage One Reasons, at para. 400.


[336]

Stage One Reasons, at para. 401.


[337]

Stage One Reasons, at para. 402.


[338]

Stage One Reasons, at para. 403.


[339]

Stage One Reasons, at para. 406.


[340]

Stage One Reasons, at paras. 406-8.


[341]

Stage One Reasons, at paras. 411-58.


[342]

Stage One Reasons, at paras. 459-61.


[343]
Stage One Reasons, at para. 462.


[344]
Stage One Reasons, at para. 463 (emphasis added).


[345]
Stage One Reasons, at para. 464.


[346]
Stage One Reasons, at para. 465.


[347]
Stage One Reasons, at para. 466.


[348]

Stage One Reasons, at para. 467.


[349]

Stage One Reasons, at para. 469.


[350]

Stage One Reasons, at paras. 455-56.


[351]
Stage One Reasons, at para. 455.


[352]
Stage One Reasons, at para. 324, citing
Marshall
, at para. 78.


[353]

Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R.
    633, at para. 50.


[354]

R. v. Van der Peet
, [1996] 2 S.C.R. 507.


[355]

Van der Peet
, at paras. 46, 55.


[356]

Van der Peet
, at paras. 80, 81.


[357]

Van der Peet
, at para. 82 (emphasis added).


[358]

Marshall
, at para. 18.


[359]

Marshall
, at para. 18.


[360]

Marshall
, at paras. 19, 20. Although McLachlin J., writing in dissent,
    did not expressly address the issue of the standard of appellate review, in
    several places her reasons evince the application of a correctness standard:
    The wording of the trade clause, taken in its linguistic, cultural and
    historical context, permits no other conclusion (at para. 96); I conclude
    that the trial judge did not err  indeed was manifestly correct  in his
    interpretation of the historical record and the limited nature of the treaty
    right that this suggests (at para. 104); and the trial judge made no error of
    legal principle. I see no basis upon which this Court can interfere (at para.
    114).


[361]

Sattva
, at para. 50. See also
Corner Brook (City) v. Bailey
,
    2021 SCC 29, 460 D.L.R. (4th) 169, at para. 20.


[362]

Sattva
, at para. 53.


[363]

Sattva
, at para. 53;
Corner Brook
, at para. 44.


[364]

Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016
    SCC 37, [2016] 2 S.C.R. 23.


[365]

Ledcor
, at para. 24.


[366]

West Moberly First Nations v. British Columbia
, 2020 BCCA 138, 37
    B.C.L.R. (6th) 232, leave to appeal refused, [2020] S.C.C.A. No. 252.


[367]

West Moberly
, at para. 130.


[368]

West Moberly
, at paras. 363-64 (emphasis added).


[369]

Caron v. Alberta
, 2015 SCC 56, [2015] 3 S.C.R. 511. The dissents
    approach in
West Moberly
also runs counter to the view expressed by
    this court in a treaty interpretation case,

Keewatin v. Ontario (Natural
    Resources)
, 2013 ONCA 158, 114 O.R. (3d) 401, at para. 158, affd
Grassy
    Narrows First Nation v. Ontario (Natural Resources)
, 2014 SCC 48, [2014] 2
    S.C.R. 447. Although not finding it necessary to engage in a detailed
    consideration of the applicable standard of review, this court stated that as
    the trial judges findings of fact were mingled with her assessment of the
    effect of legislation and principles of treaty interpretation, there may be an
    argument that some or all of her findings attract a less deferential standard:
    at para. 158.


[370]

Caron
, at para. 61 (emphasis added).


[371]
The American approach to standard of review of Indian treaty interpretation
    is similar: the interpretation of an Indian treaty is a question of law
    reviewed on a
de novo
standard, while a trial judges findings of
    historical fact, including the treaty negotiators intentions, are reviewed for
    clear error: see e.g.,
United States v. State of Washington
, 157
    F.3d 630 (9th Cir. 1998), at p. 642, cert. denied 119 S.Ct. 1376 (1999);
Richard
    v. United States
, 677 F.3d 1141 (Fed. Cir. 2012), at pp. 1144-45.


[372]

R. v. Sioui
, [1990] 1 S.C.R. 1025, at p. 1043;
Marshall
, at
    para. 78; and
R. v. Desautel
, 2021 SCC 17, 456 D.L.R. (4th) 1, at
    para. 25.


[373]
Peter W. Hogg,
Constitutional Law of Canada
, 5th ed. (Toronto: Thomson
    Reuters Canada Ltd., 2019), at § 28.6,


[374]
Dwight Newman, Contractual and Covenantal Conceptions of Modern Treaty
    Interpretation (2011) 54 S.C.L.R. (2d) 475, at p. 486.


[375]

Keewatin
, at para. 137.


[376]

Ledcor
, at paras. 39, 42 and 43.


[377]

Ledcor
, at paras. 39, 41 and 42.


[378]
Stage One Reasons, at para. 340.


[379]

Manitoba Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC
    14, [2013] 1 S.C.R. 623, at para. 153


[380]

Marshall
, at para. 5.


[381]

R. v. Badger
, [1996] 1 S.C.R. 771, at para. 76 (emphasis added).


[382]

Marshall
, at para. 82 (emphasis added).


[383]
Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage
    One Partial Judgment, at para. 1(d).


[384]
Huron Action Stage One Partial Judgment, at para. 1(e); Superior Action Stage
    One Partial Judgment, at para. 1(e).


[385]
Stage One Reasons, at para. 403.


[386]

Stage One Reasons, at para. 446.


[387]

Stage One Reasons, at para. 456.


[388]

Chilton v. Co-Operators
(1997), 143 D.L.R. (4th) 647 (Ont. C.A.), at
    p. 654.


[389]

Stage One Reasons, at para. 405.


[390]

Stage One Reasons, at para. 454.


[391]

Stage One Reasons, at para. 454.


[392]

Stage One Reasons, at para. 108.


[393]

Badger
, at para. 76;
Keewatin
, at para. 151; and
Marshall
,
    at para. 14. See also
R. v. Horseman
, [1990] 1 S.C.R. 901, at p. 908;
Sioui
,
    at p. 1069.


[394]

Michael Coyle, 
As Long as the Sun Shines: Recognizing
    that Treaties were Intended to Last, in John Borrows and Michael Coyle, eds.,
The
    Right Relationship: Re-imagining the Implementation of Historical Treaties
(Toronto: University of Toronto Press, 2017) 39, at p. 41.


[395]

Coyle, at p. 41.


[396]

Marshall
, at para. 14.


[397]

Stage One Reasons, at para. 459.


[398]

Stage One Reasons, at paras. 459-61.


[399]
Stage One Reasons, at paras. 455-56 (emphasis added).


[400]
Stage One Reasons, at para. 457.


[401]
Stage One Reasons, at para. 456.


[402]

Stage One Reasons, at paras. 252-64.


[403]
Stage One Reasons, at para. 252.


[404]
Stage One Reasons, at paras. 263-64.


[405]
See Stage One Reasons, at para. 263.


[406]
Stage One Reasons, at para. 219.


[407]
See Stage One Reasons, at paras. 405, 434, 469 and 535.


[408]
Stage One Reasons, at para. 318.


[409]
See Robert J. Surtees, Indian Land Surrenders in Ontario 1763-1867 (Ottawa:
    Indian and Northern Affairs Canada, 1983); Robert J. Surtees,
Indian Land Cessions in Ontario, 1763-1862: The
    Evolution of  System
(PhD Thesis, Carleton University, 1979)
    [unpublished]; Robert J. Surtees, Indian Land Cessions in Upper Canada,
    1815-1830 in Ian A. L. Getty & Antoine S. Lussier, eds.,
As Long as the Sun Shines and Water Flows: A
    Reader in Canadian Native Studies
(Vancouver: University of British Columbia
    Press, 1983) 65; Robert J. Surtees,
Treaty
    Research Report: The Robinson Treaties (1850)
(Ottawa: Treaties and
    Historical Research Centre, Indian and Northern Affairs Canada, 1986); Robert
    J. Surtees, Canadian Indian Treaties in Wilcomb E. Washburn, ed.,
History of Indian-White Relations
(Washington, D.C.: Smithsonian Institution, 1988) 202; and Alexander Morris,
The Treaties of Canada with the Indians of
    Manitoba and the North-West Territories Including the Negotiations of which
    they are Based, and other Information Relating Thereto
(Toronto:
    Belfords Clarke, 1880).


[410]

Mikisew Cree First Nation v. Canada (Governor General in Council)
,
    2018 SCC 40, [2018] 2 S.C.R. 765 (
Mikisew Cree
(2018)).


[411]

Haida Nation v. British Columbia (Minister of Forests)
, 2004 SCC 73,
    [2004] 3 S.C.R 511.


[412]

Mikisew Cree
(2018), at para. 21;
Haida Nation
, at para. 32; and
Manitoba Metis
, at para. 66.


[413]

Mikisew Cree
(2018), at para. 21;
Manitoba Metis
, at para.
    67; and Brian Slattery, Aboriginal Rights and the Honour of the Crown (2005)
    29 S.C.L.R. (2d) 433, at p. 436.


[414]

Mikisew Cree
(2018), at para. 22;
Manitoba Metis
, at paras.
    66-67.


[415]

Mikisew Cree
(2018), at para. 22;
Taku River Tlingit First Nation
    v. British Columbia (Project Assessment Director)
, 2004 SCC 74, [2004] 3
    S.C.R. 550, at para. 24.


[416]

Mikisew Cree
(2018), at para. 23 (citations omitted).


[417]

Haida Nation
, at paras. 16, 18.


[418]

Beckman v. Little Salmon/Carmacks First Nation
, 2010 SCC 53, [2010] 3
    S.C.R. 103, at para. 42;
Taku River
, at para. 24.


[419]

Manitoba Metis
, at para. 74.


[420]

Mikisew Cree
(2018), at para. 24.


[421]

Manitoba Metis
, at para. 73


[422]

Manitoba Metis
, at para. 73 (emphasis in original).


[423]

Peter Ballantyne Cree Nation v. Canada (Attorney General)
, 2016 SKCA
    124, 485 Sask. R. 162, at para. 41, leave to appeal refused, [2017] S.C.C.A.
    No. 95.


[424]

Manitoba Metis
, at para. 75.


[425]

Coyle, at p. 61 (emphasis and footnote omitted).


[426]
Stage One Reasons, at para. 497.


[427]

Limitations Act
, R.S.O. 1990, c. L.15 (the 1990
Limitations Act
).


[428]

Sattva Capital Corp. v. Creston Molly Corp.
, 2014 SCC 53, [2014] 2
    S.C.R. 633.


[429]

Sattva
, at para. 50.


[430]

R. v. Sundown
, [1999] 1 S.C.R. 393, at para. 24.


[431]
Julie Jai, Bargains Made in Bad Times: How Principles from Modern Treaties Can
    Reinvigorate Historic Treaties in John Borrows & Michael Coyle, eds.,
The
    Right Relationship: Reimagining the Implementation of Historical Treaties

(Toronto: University of Toronto Press, 2017)
    105 (Jai (2017)), at p. 105.


[432]
Jai (2017), at p. 107.


[433]

Jai (2017), at p. 107.


[434]
Jai (2017), at pp. 112, 122-23.


[435]
Gordon Christie, Justifying Principles of Treaty Interpretation (2000) 26:1
    Queens L.J. 143, at p. 188.


[436]
Julie Jai, The Interpretation of Modern Treaties and the Honour of the Crown:
    Why Modern Treaties Deserve Judicial Deference (2009) 26:1 Natl J. Const. L.
    25 (Jai (2009)), at p. 27.


[437]

Beckman v. Little Salmon/Carmacks First Nation
, 2010 SCC 53, [2010] 3
    S.C.R. 103, at para. 12. See also
R. v. Badger
, [1996] 1 S.C.R. 771,
    at para. 52.


[438]
Jai (2009), at p. 27. See also
Quebec (Attorney General) v. Moses
,
    2010 SCC 17, [2010] 1 S.C.R. 557, at para. 108.


[439]

Jai (2017)
, at p. 107. For a
    discussion of historical treaties and whether they reflect the real deal, a
    fair deal, or no deal at all, see Nancy Kleer & Judith Rae, Divided We
    Fall: Tsilquotin and the Historic Treaties (11 July 2014), online (blog):
Olthuis
    Kleer Townshend LLP
:
    <https://www.oktlaw.com/divided-fall-tsilhqotin-historic-treaties/>.


[440]

Jai (2017),
at p. 130.


[441]
Jai (2017), at pp. 134-36.


[442]

Beckman
, at para. 54 (citation omitted).


[443]

First Nation of Nacho Nyuk Dun v. Yukon
, 2017 SCC 58, [2017] 2 S.C.R.
    576, at para. 36.


[444]

Quebec (Attorney General) v. Moses
, 2010 SCC 17, [2010] 1 S.C.R. 557,
    at para. 108.


[445]

R. v. Van der Peet
, [1996] 2 S.C.R. 507.


[446]

R. v. Marshall
, [1999] 3 S.C.R. 456.


[447]

Caron v. Alberta
, 2015 SCC 56, [2015] 3 S.C.R. 511.


[448]
See
British Columbia Fishery (General) Regulations
, SOR/84-248, s. 27(5).


[449]

Van der Peet
, at para. 82 (emphasis added).


[450]
See e.g.,
Halfway River First Nation v. British Columbia (Ministry of
    Forests)
, 1999 BCCA 470, 64 B.C.L.R. (3d) 206, at para. 85;
Lac La
    Ronge Indian Band v. Canada
, 2001 SKCA 109, 213 Sask. R. 1, at para. 148,
    leave to appeal refused, [2001] S.C.C.A. No. 647.


[451]
Janna Promislow, Treaties in History and Law (2014) 47:3 U.B.C.L. Rev. 1085,
    at p. 1172 (footnote omitted).


[452]

Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016
    SCC 37, [2016] 2 S.C.R. 23


[453]

Caron
, at para. 61 (emphasis added).


[454]

Fort McKay First Nation v. Prosper Petroleum Ltd.
, 2019 ABCA 14, at
    para. 39.


[455]

Badger
, at para. 76.


[456]

Sattva
, at paras. 47, 49.


[457]

Sattva
, at paras. 51-52 (citation omitted).


[458]

Sattva
, at para. 53.


[459]

Sattva
, at para. 55.


[460]

Fontaine v. Canada (Attorney General)
, 2017 SCC 47, [2017] 2 S.C.R.
    205 (
Fontaine (SCC)
), affg 2016 ONCA 241, 130 O.R. (3d) 1 (
Fontaine
    (ONCA)
).


[461]

West Moberly First Nations v. British Columbia
, 2020 BCCA 138, 37
    B.C.L.R. (6th) 232, leave to appeal refused, [2020] S.C.C.A. No. 252.


[462]

West Moberly
, at para. 363.


[463]

West Moberly
, at para. 130.


[464]

Fontaine (ONCA)
, at para. 95.


[465]

MacDonald v. Chicago Title Insurance Company of Canada
, 2015 ONCA 842,
    127 O.R. (3d) 663, at para. 21, leave to appeal refused, [2016] S.C.C.A. No.
    39.


[466]

Ledcor
, at paras.
42-43.


[467]

Housen v. Nikolaisen
, 2002
    SCC 33, [2002] 2 S.C.R. 235.


[468]
Michael Coyle, As Long as the Sun Shines: Recognizing That Treaties Were
    Intended to Last in John Borrows & Michael Coyle, eds.,
The Right
    Relationship: Reimagining the Implementation of Historical Treaties
(Toronto: University of Toronto Press, 2017) 39, at pp. 46-47 (footnotes
    omitted).


[469]
Jai (2009), at p. 27.


[470]
Michael Coyle, Marginalized by Sui Generis? Duress, Undue Influence and
    Crown-Aboriginal Treaties (2008) 32:2 Man. L.J. 34, at p. 59.


[471]

Manitoba Metis Federation Inc. v. Canada (Attorney General)
, 2013 SCC
    14, [2013] 1 S.C.R. 623, at para. 80.


[472]

R. v. Morris
, 2006 SCC 59, [2006] 2 S.C.R. 915, at para. 18.


[473]
Kate Gunn, Agreeing to Share: Treaty 3, History & the Courts (2018) 51:1
    U.B.C.L. Rev. 75, at p. 92.


[474]

Marshall
, at para. 11.


[475]

Marshall
, at para. 11, quoting
R. v. Taylor and Williams
(1981), 66 C.C.C. (2d) 227 (Ont. C.A.), at p. 236, leave to appeal refused,
    [1981] S.C.C.A. No. 377.


[476]
Sylvie Poirier & Clinton N. Westman, Living Together with the Land:
    Reaching and Honouring Treaties with Indigenous Peoples (2020) 62
    Anthropologica 236, at p. 241 (citations omitted).


[477]
Thomas Flanagan,
The Tenants of Time
(New York: Dutton, 1988), at p. 85.


[478]

Marshall
, at para. 73(3).


[479]

Housen
, at para. 11.


[480]

Housen
, at para. 13, citing
Anderson v. Bessemer (City)
, 470
    U.S. 564 (1985), at pp. 574-75.


[481]

Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern
    Development)
, 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44.


[482]
Stage One Reasons, at paras. 512, 533.


[483]
See
Alberta v. Elder Advocates of Alberta Society
, 2011 SCC 24, [2011]
    2 S.C.R. 261, at para. 36;
Manitoba Metis
, at para. 50; and
Williams
    Lake
,

at para.
    162,
per
Brown J. (dissenting, but not on this point).


[484]
Stage One Reasons, at para. 533.


[485]
Stage One Reasons, at paras. 524-26.


[486]
Stage One Reasons, at para. 514.


[487]
Stage One Reasons, at paras. 520-23.


[488]
Stage One Reasons, at para. 525.


[489]
Stage One Reasons, at para. 519.


[490]
Stage One Reasons, at para. 526 (footnote omitted).


[491]
Stage One Reasons, at para. 530 (footnote omitted).


[492]
Stage One Reasons, at para. 532.


[493]
Stage One Reasons, at para. 533.


[494]

Grand River Enterprises v. Burnham
(2005), 197 O.A.C. 168 (C.A.), at
    para. 10.


[495]

Wewaykum Indian Band v. Canada
, 2002 SCC 79, [2002] 4 S.C.R. 245, at
    para. 96 (emphasis omitted).


[496]
Bryan Birtles, Another Inappropriate F Word: Fiduciary Doctrine and the
    Crown-Indigenous Relationship in Canada (2020) 9:1 American Indian L.J. 1, at
    p. 6 (footnotes omitted).


[497]

Elder Advocates
,
at
    para. 44.


[498]
Leonard I. Rotman, Understanding Fiduciary Duties and Relationship Fiduciary
    (2017) 62:4 McGill L.J. 975, at p. 978.


[499]
Rotman, at pp. 981-82.


[500]
Rotman, at p. 984.


[501]

Rotman, at p. 1013
(footnote omitted).


[502]
Rotman, at p. 992.


[503]

Guerin v. The Queen
, [1984] 2 S.C.R. 335.


[504]
See
Tito v. Waddell (No. 2)
,
[1977] 3 All E.R. 129 (Ch.).


[505]

Guerin
, at p. 376.


[506]

Guerin
, at p. 379.


[507]

Wewaykum
, at para. 81.


[508]

Wewaykum
, at para. 85.


[509]

Wewaykum
, at paras. 79-83;
Haida Nation v. British Columbia
    (Minister of Forests)
, 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18; and
Manitoba
    Metis
, at para. 51.


[510]

Williams Lake
, at para. 165.


[511]
Stage One Reasons, at paras. 509-12.


[512]
See
Guerin
, at p. 379;
Manitoba Metis
, at para. 58; and
Williams
    Lake
, at paras. 52-54.


[513]

Williams Lake
, at para. 52.


[514]

Proceedings Against the Crown Act, 1962-63
, S.O. 1962-63, c. 109 (
PACA
).


[515]
Stage Two Reasons, at paras. 79-87.


[516]

Limitations Act
,
2002
, S.O. 2002, c. 24, Sch. B. (the 2002
Limitations
    Act
).


[517]
Stage Two Reasons, at paras. 149-51.


[518]
Stage Two Reasons, at para. 153.


[519]
Stage Two Reasons, at para. 173.


[520]
Stage Two Reasons, at para. 168.


[521]
Stage Two Reasons, at paras. 179-80.


[522]

Nowegijick v. The Queen
, [1983] 1 S.C.R. 29.


[523]

Canadian National Railway Co. v. Canada (Attorney General)
, 2014 SCC
    40, [2014] 2 S.C.R. 135, at para. 33;
Heritage Capital Corp. v. Equitable
    Trust Co.
, 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 23; and
TELUS
    Communications Inc. v. Wellman
, 2019 SCC 19, [2019] 2 S.C.R. 144, at para.
    30.


[524]

1704604 Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, 449 D.L.R. (4th) 1, at para. 6.


[525]
Ruth Sullivan,
Sullivan on the
    Construction of Statutes
,
6th ed.

(Toronto: LexisNexis Canada Inc., 2014),
    at § 2.9.


[526]

2747-3174 Québec Inc. v. Québec (Régie des permis
    dalcool)
, [1996] 3
    S.C.R. 919, at para.
238,
per
LHeureux-Dubé J. (concurring);
ATCO Gas & Pipelines Ltd. v.
    Alberta (Energy & Utilities Board)
, 2006 SCC
    4, [2006] 1 S.C.R. 140, at para. 59; and Sullivan, at
§§ 4.23 (fn. 4), 8.9.


[527]

R. v. McColman
,
2021 ONCA 382, 156 O.R. (3d)
    253, at para. 115. See also
Solar Power Network Inc. v. ClearFlow
    Energy Finance Corp.
, 2018 ONCA 727, 426 D.L.R.
    (4th) 308, at para. 75, leave to appeal refused, [2018] S.C.C.A. No. 487;
Keatley
    Surveying Ltd. v. Teranet Inc.
, 2019 SCC 43, 437
    D.L.R. (4th) 567, at para. 96,
per
Côté and Brown JJ. (dissenting).


[528]

See
Pawis v. Canada
,
[1980] 2 F.C. 18, at para. 9(i);
Badger
, at para. 76; and
Fletcher v. Ontario
, 2016 ONSC 5874, at para. 118.


[529]
Stage Two Reasons, at paras. 127-28 (footnotes omitted).


[530]
Stage Two Reasons, at paras. 164-68 (footnotes omitted).


[531]
Stage Two Reasons, at paras. 178-79.


[532]
Dan Zacks, Ontario: There has never been a limitation period for a breach of
    treaty claim (16 July 2020), online (blog):
Under the Limit: Developments
    in Canadian Limitations Jurisprudence
:
    <http://limitations.ca/?p=1134>.


[533]
Ontario Law Reform Commission,
Report on the Limitation of Actions
(Toronto: Department of Attorney General, 1969), at p. 18.
