Authors: Jessica Buhler, Meaghan Conroy, Rangi Jeerakathil, Josh Morrison, Erica Klassen, Jorie Halcro
Blood Tribe’s claim is barred by statute of limitations, but Canada’s conduct was “deplorable.”
The Blood Tribe has long maintained that it did not receive the full area of reserve land that it was promised in Treaty No. 7 and has been in dispute over its Treaty Land Entitlement (“TLE”) with Canada since 1980.
In February 2022, the Federal Court of Appeal (“FCA”) in Canada v Jim Shot Both Sides (2022 FCA 20) held that the Blood Tribe’s claim was barred by limitations law. On April 12, 2024, in Shot Both Sides v Canada (2024 SCC 12), Canada’s highest court dismissed nearly all of the Blood Tribe’s appeal, substantially agreeing with Justice Rennie’s reasons at the FCA. However, the Supreme Court of Canada (“SCC”) took this opportunity to declare that, although the Blood Tribe’s claim is statute-barred, Canada breached the Treaty No. 7 land entitlement provisions. The Crown’s conduct in shortchanging the Blood Tribe and making no attempt to remedy the breach was dishonourable.
Although Canada was successful in defending against the Blood Tribe’s appeal, the SCC has signaled loud and clear that the focus for Canada and the Blood Tribe going forward should be reconciliation, which necessitates Canada being responsive to the Blood Tribe’s claim outside of the courtroom.
Background
Blood Tribe Reserve No. 148 is located in southwestern Alberta in Treaty No. 7 territory. It is the largest reserve in Canada and home to the Blood Tribe, also known as the Kainai. The size of the reserve was supposed to have been set by the TLE provisions in Treaty No. 7, which provided a formula based on population size. In 1882, the initial survey of the reserve described it as an area of approximately 650 square miles. However, Canada reduced it to 547.5 square miles the very next year.
Members of the Blood Tribe expressed concern with the size of the reserve in 1888 and again in 1969, at which time they retained a researcher to look into the issue. By 1971, the researcher confirmed that the Blood Tribe had been shorted in their TLE and they began to pursue a claim shortly thereafter. When Canada rejected their claim in 1980, the Blood Tribe commenced an action in Federal Court, which was eventually put on pause pending an assessment under the Specific Claims Policy of the Department of Indian Affairs and Northern Development.
Procedural history
The Federal Court, in 2019 FC 789, concluded that actions for breach of Treaty could not be pursued in Canadian courts prior to 1982 when section 35(1) of The Constitution Act, 1982 came into effect. The trial judge found that although the Blood Tribe’s claim was discoverable in 1971 and was commenced in 1980, the limitation period did not start to run until 1982 when section 35(1) became part of Canadian law. The trial judge found that the limitation period started running two years after the claim was initiated.
The FCA overturned most of the trial judge’s rulings on the basis that the commitments made in Treaty have been legally enforceable for over 120 years. The FCA emphasized that section 35(1) of The Constitution Act, 1982 did not create new Aboriginal or Treaty rights, but rather gave constitutional protection to Aboriginal and Treaty rights that already existed. The FCA held that the limitation period had run out before the Blood Tribe commenced their claim in 1980 so they could not pursue their claim in court. The FCA encouraged the Blood Tribe to pursue a specific claim under the Specific Claims Tribunal Act instead, as limitation periods do not apply to specific claims.
Supreme Court of Canada decision
Before the SCC, Canada conceded that it breached the TLE formula in Treaty No. 7 and provided a reserve that was 162.5 square miles too small, but argued that the Blood Tribe’s claim was still statute-barred under the Alberta Limitation of Actions Act.
The Blood Tribe argued that breach of Treaty claims were not actionable until 1982, when section 35 came into effect and that a Treaty claim could not be statute-barred prior to the cause of action existing in law. The Blood Tribe did not contest the fact that the claim was discoverable as early as 1971, or that if limitation period applied, it had already expired by 1980.
As a result, the issue before the SCC was narrow. The Court was clear that it was not going to opine about whether or not it was constitutional for limitations laws to apply to Treaty claims, but rather would focus on the following:
(1) Whether the breach of the TLE was actionable in Canadian courts prior to the coming into force of section 35(1) of the Constitution Act, 1982; and
(2) Whether the Blood Tribe’s TLE claim was statute-barred.
In unanimous reasons written by Justice O’Bonsawin (the first Indigenous judge to sit on the SCC), the Court pointed to a long line of jurisprudence demonstrating that Treaties between the Crown and Indigenous peoples have always been recognized by the courts as having legal effect. The SCC confirmed that Treaty obligations were enforceable at common law from the moment the Treaties were signed. Treaty rights flow from the Treaties themselves and not the Constitution. Section 35(1) did not create rights, but gave existing rights constitutional protection, such that it has been much more difficult for Canada to derogate from those rights since 1982.
Since the TLE rights in Treaty No. 7 were enforceable in 1971 when the Blood Tribe discovered the breach, the limitation period began to run at that time. By the time the Blood Tribe brought their claim in 1980, the limitation period had expired.
Treaties between Indigenous peoples and the Crown are enforceable from the moment they are executed – they do not require “ratification” by section 35(1) to become legally effective. However, whether Treaties have been honoured, or whether First Nations have been successful in holding the Crown accountable in the courts over the last century for Treaty breaches, is another story. For that reason, the SCC issued declaratory relief in favour of the Blood Tribe.
Declaratory relief
A declaration is an authoritative statement on the legal state of affairs made by a Court. Declaratory relief does not involve the Court ordering a party to do or refrain from doing anything. Declaratory relief is not subject to limitation periods.
The Court said that declaratory relief is a means by which a Court can promote reconciliation. The SCC issued the following declaratory relief signaling to the Crown and to Canada at large that the Blood Tribe had been wronged:
Under the TLE entitlement provisions of Treaty No. 7, the Blood Tribe was entitled to a reserve equal to 710 square miles in area;
The Blood Tribe’s current reserve is 162.5 square miles smaller than what was promised in Treaty No. 7; and
Canada, having provided the Blood Tribe with a reserve of 547.5 square miles, dishonourably breached the TLE provisions of Treaty No. 7.
Canada breached its Treaty promises to the Blood Tribe by when it failed to provide less reserve land than promised and later by falsely representing to the Blood Tribe that the TLE promise was fulfilled. Canada never did anything to remedy or acknowledge the breach. The SCC referred to the Crown’s conduct as “deplorable” in that the sacred Treaty promises were intended to be honoured as long as the sun rises and the rivers flow, yet Canada disregarded them.
By making a declaration, the Court is not ordering that Canada provide any specific relief to the Blood Tribe. Rather, when Canada and the Blood Tribe next come to the negotiation table, both parties will have a clear understanding that Canada’s actions were wrong and that Canada breached its Treaty obligations. The SCC issued the declaration with the belief that it may assist the parties in reconciling their dispute in the future.
Takeaways
Canada’s legal argument that the Blood Tribe’s claim is statute-barred was successful, although the Court chose not to weigh in on whether limitation periods were constitutionally inapplicable to breach of Treaty claims in general.
The case send a clear message that reconciliation will not be achieved if Canada insists on avoiding accountability for its Treaty promises by relying on technical defenses.
If you need legal assistance with a Treaty claim, or have questions about other matters related to Aboriginal law in general, our Indigenous practice group at MLT Aikins would be happy to hear from you.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.