Local Journalism Initiative Reporter
The Supreme Court of Canada was told today by the Blood Tribe and numerous First Nations interveners that barring claims based on breaches of the Crown’s treaty obligations because of provincial limitation periods was not furthering reconciliation with Indigenous peoples.
“By retroactively recognizing in order for the Crown to avoid a claim on the basis of the limitation period, I submit that is just not in keeping with section 35 (1) at all. This court needs to come to grips with the history of the common law’s deficiencies in an effort to achieve the goals of reconciliation. The common law was deficient. It didn't allow the enforcement of this specific treaty right because it wasn't recognized as statute,” said Gary Befus, legal counsel for the Blood Tribe.
Sect. 35 (1) in the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada.
Under Jim Shot Both Sides et al. v. His Majesty the King, the Blood Tribe began legal action in federal court in January 1980, claiming Canada had breached its contract by failing to set aside sufficient reserve lands for the Blood Tribe as promised under Treaty 7.
The legal action sat in abeyance until 2016 as the Blood Tribe attempted other means to negotiate with Canada, including the Specific Claims Policy and through the Indian Claims Commission.
Canada rejected both efforts.
The court case was divided into three parts. The first two parts resulted in the 2019 decision from the federal court, which ruled that Canada was in breach of the Treaty Land Entitlement (TLE) formula. Under that formula, the Blood Tribe reserve should be 710 square miles but is instead 547.5 square miles. The Tribe acquired its initial information to support its claim of shorted reserve land in 1971.
The trial judge said the claim was not time-barred by Alberta’s six-year limitation period to take legal action on the claim that Canada had breached a TLE treaty promise, because it could not have been brought prior to the passage of sect. 35 of the Constitution Act, 1982.
The Federal Court of Appeal disagreed. That Court ruled that Canada’s obligations to fulfil the Crown’s treaty promises existed and were enforceable by law prior to 1982. As a result, the Blood Tribe was time-barred from proceeding with the claim.
The Blood Tribe appealed to the Supreme Court, where Justices Mahmud Jamal and Malcolm Rowe challenged Befus in using 1982 as a turning a point.
Hon. Jamal contended the Constitution Act, 1982 was not required to implement treaties. They were enforceable by common law with “their solemn promises flowing from the honour of the Crown.”
Hon. Rowe said Sect. 35 (1) did not create nor was it the source of Aboriginal and treaty rights.
Only the power of Parliament was limited by the constitutional measure, meaning federal politicians could not extinguish Aboriginal or treaty rights, explained Rowe. The rights themselves were not impacted.
That was also the argument offered by Dayna Anderson, legal counsel for Canada.
Hon. Nicholas Kasirer pointed out that pre-1982, treaty rights could be extinguished by statute. However, he said, limitations as to when legal action can occur dealt with remedies, and not actual extinguishment of the treaty rights.
Befus confirmed that the Blood Tribe’s rights had not been extinguished.
Neil Dobson, legal counsel for Alberta, pointed to the Natural Resources Transfer Agreements of 1930, which gave Alberta, Saskatchewan and Manitoba jurisdiction over natural resources, but also included a mechanism for Canada to request lands from the provinces to meet the federal obligation to provide reserve lands.
“To suggest that the underlying right to reserve land was not enforceable until Section 35 was enacted more than 50 years after the NRTA was enacted, undermines the meaning and the intent of the terms of the treaty, as well as the NRTA,” said Dobson.
The legal limitation period was argued in a different manner, as pointed out by Hon. Jamal, by a number of interveners in the case who said treaty claims are inherently not subject to limitation periods.
“The Treaty 8 First Nations submit that the Crown's treaty promises must always be fulfilled. And that limitations legislation should not ever be used as basis to prevent the fulfillment of those obligations,” said Kate Gunn, legal counsel for Treaty 8 First Nations in Alberta, one of 11 interveners in the case.
Carly Fox, legal counsel for the Assembly of Manitoba Chiefs, argued that legal limitations allowed the Crown to use colonial laws to shield themselves.
Attorney General of Saskatchewan legal counsel Mitch McAdam pointed out that his province had never used limitation periods in dealing with TLE negotiations, which were viewed as an ongoing “legal obligation (and) the legal right continues.”
However, Anderson said legal limitations only meant the Blood Tribe could not take action through the court. Other avenues to remedy the situation did exist, including the federal government’s Specific Claims Tribunal.
That’s “cold recourse,” said Ron S. Maurice, legal counsel for the Federation of Sovereign Indigenous Nations, for a First Nation to not be able to access the courts to remedy a breach or non-fulfillment of a treaty right to land.
As for the Specific Claims Tribunal, pointed out Glen K. Epp, legal counsel for Lac La Ronge Indian Band, it does not provide an effective alternative remedy with a monetary settlement set at a maximum of $150 million.
“(It’s) a cap placed there by Canada…(and) I would suggest in the Blood Tribe’s case they're well over that cap and thus there's no effective remedy for them there,” said Epp.
“The tribunal is not a panacea. It’s the middle ground that can be taken when the limitation period has been passed,” said Anderson.
Hon. Sheilah L. Martin said what she found “more interesting” was that Canada “insist(ed) rigorously” on time-barring a claim in court, but offered the specific claims process “where you recognize that the honour of the Crown requires there not to be” a time limitation.
Hon. Nicholas Kasirer pointed out that three-and-a-half years after the Blood Tribe time-barred out of being able to take court action, now the Crown was saying it was ready to negotiate.
“You can imagine people hearing that the Crown is now ready to negotiate being a little skeptical of that,” he said.
As for the appropriate remedy if the Supreme Court doesn’t set aside the appeal court’s ruling, Befus said it was unclear, as phase three of the trial, which is to deal with damages, was still outstanding.
Befus said the Blood Tribe was looking for a declaration that could include upholding the finding in the trial court that a reserve of 650 square miles (based on a 1982 survey) had been created; or that the Blood Tribe had never surrendered their land; or that the Blood Tribe was entitled to a reserve of 710 square miles.
“Is it your position of those declarations…(that they) may put a bit of a moral obligation on the Crown to do something…(as) there was no willingness to negotiate, but now they're willing to negotiate. And so making that sort of statement in this decision, rather than in a new phase, may be a way of actually…putting some moral pressure on the Crown. Is that your view?” asked Hon. Jamal.
Befus replied in the affirmative.
In discussing the declaratory statement with Anderson, Hon. Kasimer pushed the “dishonourable character of the breach.” He asked her if she would object to that inclusion.
Anderson said no.
Another issue raised by an intervener, Cowichan Nation Alliance legal counsel David Robbins, was the ongoing trial in British Columbia involving the Cowichan Nation Alliance and its Cowichan Title Claim. The B.C. government has raised a limitations defence and Robbins emphasized that Aboriginal title and treaty rights are not the same.
“The lower courts here considered limitation periods to be constitutionally sound because they do not extinguish rights, but merely bar remedies based on those rights. Respectfully, the Cowichan ask this court to have regard that this is wrong in law, generally, and wrong as applied to Aboriginal title claims,” said Robbins.
Chief Justice of Canada Richard Wagner said court would take the case under advisement.
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