Publication

The Limits of Indigenous Treaty Claims

Published:

August 6, 2024

Author(s):

• Harvey Morrison, KC, Partner
• Jeffery Callaghan, Partner
• Jacqueline Hartigan, McInnes Cooper Alum

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On April 12, 2024, the Supreme Court of Canada held that treaty rights of Indigenous communities flow from the treaties themselves, not the Constitution Act, 1982. The decision in Shot Both Sides v. Canada states that rather than creating new rights, section 35(1) of the Constitution Act, 1982 instead confirms pre-existing rights, including treaty-based claims. Practically, this means treaty claims are subject to provincial limitation of actions legislation, including the discoverability rule – and thus that many actions alleging that the Crown breached treaties could be time-barred. The Court did, however, grant declaratory relief acknowledging the Crown’s breach of its treaty rights. The Court did so in order to foster and promote reconciliation and a nation-to-nation relationship between the parties and to provide clarity should the specific Indigenous community and Canada engage in future claim negotiations. The Court’s decision means the aggrieved Indigenous community wasn’t entitled to damages in respect of the Crown’s conduct.

By addressing historical grievances and clarifying the role of section 35(1) of the Constitution Act, 1982, the decision provides a framework for evaluating treaty rights and obligations and provides guidance for stakeholders involved in similar disputes. But the decision also highlights the limits of declaratory judgments in rectifying historical injustices. Ultimately, the decision means many Indigenous treaty beneficiaries might be deprived of tangible remedies to alleviate the ongoing effects of those injustices and could cause affected parties to divert their focus away from litigation and toward more detailed consultation, negotiation and other alternative forums.

 The Case

Signed in 1877, Treaty No. 7 was an agreement between the Crown and the Blackfoot Confederacy, including the Blood Tribe. According to the Treaty, the Blood Tribe was promised reserve lands in southern Alberta calculated as one square mile per family of five and adjusted accordingly for different sized families. The Blood Tribe alleged the actual reserve lands, the Blood Tribe Reserve No. 148, was smaller than what the Crown should have allocated to them by 162.5 square miles. In 1971, a researcher validated Blood Tribe’s concerns by confirming a discrepancy in the Blood Tribe’s Treaty Land Entitlement. In 1976, the Blood Tribe formally approached the then Minister of Indian Affairs (now the Minister of Crown-Indigenous Relations) to negotiate two claims:

• That the Treaty Land Entitlement was incorrectly assigned.
• That the Blood tribe was entitled to a broader area of land.

The Minister rejected these claims on June 20, 1978, due to differing interpretations of treaty obligations and calculations using a Treaty Land Entitlement formula. In 1980, the Blood Tribe initiated legal action against the federal Crown alleging breaches of fiduciary duty, fraudulent concealment and negligence.  It sought a declaration and damages for breach of contract arising from the Crown’s failure to properly apply the Treaty Land Entitlement formula.

The Decisions

The key legal issue was whether the provincial limitation period on the Blood Tribe’s Treaty claim applied – and whether it had expired, barring the treaty claim.

Trial. The Federal Court acknowledged the Crown’s miscalculation of the reserve size and affirmed the Blood Tribe’s claim. It further ruled that while the Treaty Land Entitlement claim was discoverable in 1971, the six-year limitation period for filing the claim didn’t commence until 1982 with the enactment of section 35(1) of the Constitution Act, 1982 affirming treaty rights. The Crown appealed this decision.

Appeal. The Federal Court of Appeal reversed the trial decision, concluding section 35(1) did not create new treaty rights but affirmed pre-existing ones. The Treaty Land Entitlement claim was thus actionable at common law before enactment of section 35 in 1982 and was barred by the provincial limitation of actions legislation. The Blood Tribe appealed this decision to the Supreme Court of Canada. Interveners argued limitation legislation specific to the province in which the claim arises should not bar Indigenous claims of breaches to Crown treaty promises.

Supreme Court of Canada. The Supreme Court of Canada unanimously agreed that:

• Section 35(1) of the Constitution Act, 1982. Section 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights, did not create new rights. Rather, it constitutionally protected pre-existing rights from being abrogated by federal, provincial or territorial laws. Treaty rights are enforceable upon execution of the treaty, emphasizing that treaties create actionable duties upon being signed – independent of the Constitution Act, 1982.

• Limitation of Actions Legislation. Section 35(1) did not alter the commencement of provincially legislated limitation periods for claims related to breach of treaty promises. As a result, the Blood Tribe’s claim, discoverable in 1971 but only filed in 1980, was time-barred.

• Declaratory Relief. The Blood Tribe was still entitled to declaratory relief, a tool used to clarify legal principles and obligations of parties but does not require any specific action from the parties. As such, the Court recognized the Blood Tribe’s entitlement under the Treaty and acknowledged the Crown’s failure to fulfill its obligations by declaring that under Treaty No. 7’s Treaty Land Entitlement provisions, the Blood Tribe: was entitled to a reserve equal to 710 square miles in area; its current reserve is 162.5 square miles smaller in area than what was promised in Treaty No. 7; and the Crown dishonourably breached the treaty land entitlement provisions of Treaty No. 7.

Please contact your McInnes Cooper lawyer or any member of our Aboriginal & Indigenous Law Team @ McInnes Cooper to discuss this or any other topic.

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