High court upholds time limits on filing of treaty-based lawsuits

CBC Indigenous: Canada acted dishonourably by breaking its treaty obligations to the Blood Tribe in Alberta but the band is barred from suing by the province’s statute of limitations, the Supreme Court of Canada has ruled.

The high court on Friday handed down a unanimous decision in Jim Shot Both Sides v. Canada, a case that may impact the ability of First Nations countrywide to sue the Crown for historic treaty violations.

Justice Michelle O’Bonsawin, writing for the court, declared Canada’s historic double dealing was “deplorable,” but that the Blood Tribe failed to sue within the mandatory time frame. 

The claim revolved around Canada’s admitted failure to set aside reserve lands for the band, also known as Kainai Nation, part of the Blackfoot Confederacy, about 200 kilometres south of Calgary.

The Blood Tribe were signatories to Treaty 7 in 1877 but long alleged the size of their reserve didn’t match the treaty promise. They eventually sued Canada in 1980 alleging dishonourable conduct, fraudulent concealment and negligence.

The case turned, however, on the narrow issue of whether the claim was barred by Alberta’s statute of limitations, the time period in which lawsuits can be filed, which in this case was six years.

The misconduct was discovered by a Blackfoot researcher in 1971. If the clock began ticking then, the claim was barred by 1980. If the clock began ticking in 1982 when Canada’s Constitution recognized and affirmed treaty and Aboriginal rights, it could proceed.

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A Federal Court trial judge found the clock started ticking in 1982 and upheld the treaty-land entitlement claim. The Federal Court of Appeal reversed the ruling and blocked the suit.

The Blood Tribe appealed to the high court, which allowed the appeal in part. O’Bonsawin held that treaties were valid and enforceable long before Canada’s Constitution was patriated.

Therefore, the tribe could’ve sued in 1971, so the 1980 claim is still statute-barred, she wrote. However, the “longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe” was so great she declared Canada in breach of the treaty.

“Canada breached its treaty promises to the Blood Tribe. Canada did not provide the land as promised: 162.5 fewer square miles were set aside than should have been,” O’Bonsawin wrote.

“This conduct is deplorable and does not reflect the fundamental objective of the modern law of treaty rights, which is the reconciliation of Indigenous and non-Indigenous peoples and their respective claims, interests, and ambition.”

Despite the barring of the claim, issuing the declaration highlighting the Crown’s dishonorable breach of Treaty 7 has the practical effect of highlighting the band’s legal rights and encouraging the reconciling of a fractured relationship, she reasoned.

“Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe and the Crown.”

In other words, the First Nation can’t sue but it can pursue negotiation with the legal declaration in hand or press its claim at the specific claims tribunal, where there are no time limits but where awards are capped at $150 million.

ABOUT THE AUTHOR

Brett Forester, Reporter

Brett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.