On the Breach of Treaties

• Pages: 83-106
• Author: Bryan Birtles

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 

On the Breach of Treaties

Despite the fact that their dictionary definitions are similar, Canadian

law treats infringement and breach of treaty as separate, but related,

concepts. e easiest way to think about the relationship between the

two is that all breaches are infringements, but not all infringements are

breaches. e courts typically consider an infringement in the context

of a law or an administrative decision that restricts or regulates a treaty

right without necessarily removing it entirely. An infringement can

be justified based on the analysis in Chapter . A breach is typically

considered where Crown conduct violates or fails to fulfill an explicit

term of a treaty — oral or written — or violates a doctrine related to

treaty fulfillment, such as the honour of the Crown or the fiduciary

duty. A breach cannot be justified.

Canadian jurisprudence oers few examples of courts finding a

treaty breach simpliciter. Rather, courts often rest their decisions on

breaches of related doctrines, such as the honour of the Crown or the

fiduciary duty. It is not easily discernible why the Canadian judiciary

is reticent to determine a breach of treaty. It may be based on an overall

lack of facility with Crown-Indigenous treaty principles, or it may be

that the related doctrines — being equitable rather than legal — open

the door to equitable remedies, the flexibility of which judges see as

an advantage when determining relief.

A TREATISE ON TREATIES

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Recognized Breaches

Failure to Fulfill Treaty Entitlements

Breaches of this type deal with a failure to provide land or other items

promised directly in treaty texts. Typically, these breaches will deal

with reserve land entitlement based on a historical formula but may

also deal with entitlement to annuities, the failure to provide farming

implements, or the failure to provide medical care or supplies.

Jim Shot Both Sides v Canada is an example of a land entitlement

claim. e action concerned the amount of land that ought to have

been reserved for the Blood Tribe in Blood Tribe Reserve No. , cre-

ated pursuant to Treaty No. . Most numbered treaties created reserves

based on a formula that accorded land based on a per person calcula-

tion. In Treaty No. , the formula was “one square mile for each family

of five persons, or in that proportion for larger and smaller families.”

Treaty No.  was signed in , but the Blood Reserve was not sur-

veyed until . e problem occurred in , when the reserve was

surveyed a second time. e number of people living on the territory

was smaller in  than it had been in , and the Crown moved

the boundary of the reserve northward, reducing the reserve by .

square miles. e Blood Tribe alleged that this breached the treaty.

e Crown argued that the first survey was merely preliminary and

did not create the reserve, but the court rejected this, based partly

on evidence that a number of ocials in the Department of Indian

Aairs considered the reserve boundaries finalized by the first survey.

e Federal Court found a breach of treaty in addition to breaches of

related duties.

In Restoule v Canada (Attorney General), the court was called upon

to determine a more complicated issue: the potential increase of an

annuity under treaty. A number of Anishinaabe First Nations in the

upper Great Lakes region — signatories to the Robinson-Huron or

Robinson-Superior treaties — alleged that the Crown had not fulfilled

its promise to increase annuities paid to individual members of the

Nations that had taken treaty. Signed in , each treaty provided for