The Blood Tribe/Káínai, a member tribe of the Blackfoot Confederacy of First Nations, had commenced an action in Federal Court in 1980 arguing the size of their reserve, which is located approximately 200 kilometres south of Calgary, did not respect the treaty land entitlement (TLE) provisions as outlined in Treaty No. 7, which had been signed by the Crown and the Confederacy in 1877. In 1971, a Blackfoot researcher gathered information on the total number of people in the Blood Tribe/Káínai for the years 1879 to 1884 and, based on this information, said that the existing reserve boundaries did not match the boundaries owed under the TLE formula.
A trial judge found that although the facts underlying the TLE claim were discoverable in 1971 or shortly thereafter, the applicable six-year limitation period did not begin to run until 1982, when the enactment of section 35(1) of the Constitution Act, 1982 created a new cause of action for treaty breaches. However, the Federal Court of Appeal allowed the Crown’s appeal and held that the TLE claim was statute-barred.
And now the Supreme Court of Canada, in a unanimous decision released April 12, has ruled the Federal Court of Appeal correctly held that the coming into force of s. 35(1) of the Constitution Act, 1982 did not create a cause of action for breach of the treaty and, as a result, did not alter the commencement of the limitation period applicable to the Blood Tribe/Káínai’s TLE claim, which began in 1980 (Shot Both Sides v. Canada, 2024 SCC 12).
“Treaty rights flow from the treaty, not the Constitution. It is well established in Canadian case law that treaties are enforceable upon execution and give rise to actionable duties under the common law,” Justice Michelle O’Bonsawin wrote. “As the Federal Court of Appeal concluded, the Blood Tribe’s claim is thus statute-barred.”
Justice Michelle O’Bonsawin
“In 1883, the Lieutenant Governor of the North-West Territories instructed the surveyor to change the boundaries of the reserve contrary to Canada’s treaty commitments. Crown representatives subsequently made false representations to the Blood Tribe that the TLE was fulfilled including in an 1888 letter stating that the reserve contained far more than [the Blood Tribe/Káínai] were entitled to,” she 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 ambitions.”
Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe/Káínai and the Crown, Justice O’Bonsawin wrote.
“Ultimately, a declaration is a discretionary remedy that must be considered within the unique context of the legal dispute at issue. The considerations analyzed … support the issuance of declaratory relief in these circumstances,” she wrote. “These considerations must be assessed through the lens of decades of disagreement between the parties on the scope of the treaty promises owed to the Blood Tribe that culminated in extensive litigation.”
Kate Gunn of First Peoples Law, who represented the intervener Treaty 8 First Nations of Alberta, said she was disappointed by the ruling. She said if reconciliation is to be achieved, it is important for First Nations to have access to meaningful remedies, and the decision represented a “step backwards.”
“I think it’s unlikely to have a positive effect on efforts to achieve reconciliation because it effectively tilts the balance of powers further in favour of the Crown by essentially saying there’s a declaration saying the Crown did something wrong, but there’s no recourse available in the court for First Nations in those circumstances,” she said. “I think the negotiation process tends to go the best when First Nations do have the ability to say if we are unable to make meaningful progress here, we will enforce our obligations before the courts.”
But the court’s clarification on s. 35(1) was useful, said Gunn.
“In terms of the source of the treaty rights and the treaty promises, I think that is helpful affirmation from the court that promises flow from the treaty, and they are not created by virtue of s. 35,” she said. “Rather, s. 35 provides constitutional protections for those rights, but also says those rights did exist well prior to 1982.”
Both the Blood Tribe/Káínai and the federal government did not provide a statement by press time.
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