Shot Both Sides v. Canada, 2022 FCA 202024 SCC 12 (40153)

“The Blood Tribe are a member tribe of the Blackfoot Confederacy of First Nations. On September 22, 1877, Treaty No. 7 was made between the Crown and the Confederacy. Treaty No. 7 established Blood Tribe Reserve No. 148, the largest reserve in Canada and the home of the Blood Tribe. The reserve’s size was to be set in accordance with the treaty land entitlement (“TLE”) provisions, based on a formula promising one square mile for each family of five persons, or in that proportion for larger and smaller families. The Blood Tribe has long claimed that the size of the reserve did not respect the TLE formula. In 1971, a Blackfoot researcher gathered information on the total number of people in the Blood Tribe for the years 1879 to 1884 and, based on this information, confirmed that the existing reserve boundaries did not match the boundaries owed pursuant to the TLE formula. The Blood Tribe formally sought to negotiate with the Minister of Indian Affairs, who rejected its claims.

The Blood Tribe consequently commenced an action in the Federal Court in 1980, alleging breaches of the Crown’s fiduciary duty, fraudulent concealment, and negligence, and seeking a declaration and damages for breach of contract arising from the Crown’s failure to fulfill the TLE according to the prescribed formula (the “TLE Claim”). The trial judge dismissed all claims except the TLE Claim, concluding that the Crown had miscalculated the size of the reserve by underestimating the Blood Tribe’s membership, and stated that the Crown’s conduct during the reserve’s creation was unconscionable. The 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 s. 35(1) of the Constitution Act, 1982 created a new cause of action for treaty breaches. The remedies sought for the TLE Claim were therefore not statute‑barred because the action was commenced in 1980. The Federal Court of Appeal allowed the Crown’s appeal and held that the TLE Claim was statute-barred. In its view, s. 35(1) of the Constitution Act, 1982 did not create new treaty rights, and a remedy was available for the TLE Claim prior to 1982 regardless of the framed cause of action.”

The SCC (7:0) allowed the appeal in part and issued a constitutional declaration. 

Justice O’Bonsawin wrote as follows (at paras. 4-5, 70-74, 80-81, 83-84):

“This appeal concerns whether the Blood Tribe’s TLE claim is barred by the six-year limitation period in Alberta’s Limitation of Actions Act. This inquiry turns on a narrow question: whether the breach of the TLE was actionable in Canadian courts prior to the coming into force of s. 35(1) of the Constitution Act, 1982. The Blood Tribe argues that their claim cannot be statute-barred under Alberta’s Limitation of Actions Act and the Federal Courts Act prior to there being a recognized action in law, which they allege was not the case for breach of treaty claims until the coming into force of s. 35(1). The constitutional applicability and operability of Alberta’s Limitation of Actions Act, as incorporated into federal law by s. 39(1) of the Federal Courts Act, is not at issue.

For the reasons that follow, I would allow the appeal in part. The Federal Court of Appeal correctly held that the coming into force of s. 35(1) of the Constitution Act, 1982 did not alter the commencement of the limitation period applicable to the Blood Tribe’s TLE claim. Treaty rights flow from the treaty, not the Constitution. It is well established in Canadian caselaw that treaties are enforceable upon execution and give rise to actionable duties under the common law. As the Federal Court of Appeal concluded, the Blood Tribe’s claim is thus statute-barred. However, I find that declaratory relief is warranted given the longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe. Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe and the Crown.


 

Declaratory relief takes on a “unique tenor” in the context of Aboriginal and treaty rights because it is a means by which a court can promote reconciliation to restore the nation-to-nation relationship (the Hon. M. Rowe and D. Shnier, “The Limits of the Declaratory Judgment” (2022), 67 McGill L.J. 295, at pp. 314 and 318). It relies in part on the government acknowledging the declaration promptly and acting honourably in determining the means for advancing reconciliation (J. Teillet, “A Tale of Two Agreements: Implementing Section 52(1) Remedies for the Violation of Métis Harvesting Rights”, in M. Morellato, ed., Aboriginal Law Since Delgamuukw (2009), 333, at pp. 340-41). That this assumption can be difficult in breach of treaty cases, as reconciliation efforts often follow decades of dishonourable Crown conduct and adversarial litigation, does not diminish the possible salutary effect of declarations.

The reconciliation process differs from the conflict driven, adversarial litigation process that is often antithetical to meaningful and lasting reconciliation. As the Court noted in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24, “[t]rue reconciliation is rarely, if ever, achieved in courtrooms.” The Court has repeatedly emphasized the importance of reconciliation between Indigenous peoples and the Crown outside of the courts (see, e.g., C-92 Reference, at para. 77; Desautel, at para. 87; Haida Nation, at para. 20; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 47).

Reconciliation can be fostered by declaratory relief. The non-coercive nature of declaratory relief can help “the parties to the dispute to resolve the issues without an excessively hostile or adversarial approach” and can help to restore the honour of the Crown (Sarna, at p. 178). Academic commentary has recognized that this approach “is especially appropriate given the non-adversarial, trust-like relationship Canadian governments are supposed to have with Aboriginal people” (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 15:31). Avoiding expensive, lengthy, and adversarial litigation is an important step for reaching reconciliation-oriented results where Aboriginal and treaty rights are at issue.

In Aboriginal and treaty rights claims, declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises. Clarity on these rights, duties, and conduct can help to uphold the honour of the Crown, guide the parties in the reconciliation process mandated by s. 35(1) of the Constitution Act, 1982, and assist with efforts to restore the nation-to-nation relationship.

Declarations in the context of breach of treaty claims can serve a corrective function by authoritatively demonstrating that the Crown has infringed the Indigenous party’s rights (Zakrzewski, at p. 159). A clear statement setting out the Crown’s infringement of an Indigenous party’s rights may spur reconciliation efforts between the parties to address the wrongs suffered. Declaratory relief is not meant to represent the end of the reconciliation process for the Crown’s breach of Treaty No. 7: it merely helps set the stage for further efforts at restoring the nation-to-nation relationship and the honour of the Crown.


 

The dispute between the Crown and the Blood Tribe is real and not academic. The Crown has opposed the declaration being sought by the Blood Tribe at almost every stage of this litigation. The dispute is grounded in an extensive and contested factual matrix regarding the Crown’s commitments under Treaty No. 7 and the size of the TLE. The Crown contested that it breached its obligations under Treaty No. 7 when the action was commenced in 1980. This issue remained in dispute for decades, resulting in a lengthy and complex trial before the Federal Court and a holding that Canada breached its treaty commitments. Declaratory relief was sought by the Blood Tribe in its statement of claim to resolve the live conflict on this issue through legal action (C.A. reasons, at para. 3).

Before this Court, the Crown concedes its breach of the TLE and that a declaration may be an appropriate remedy. Accordingly, it could be said the Crown no longer has an interest in opposing the declaration sought with respect to the final criteria for declaratory relief. However, enabling this belated concession to foreclose the possibility of declaratory relief would privilege form over substance with respect to the nature of the “real” dispute before us, and would overlook the protracted nature of the dispute that led the parties to this point. As such, I am not persuaded that this concession, at the eleventh hour of this litigation and in the context of the Crown’s vigorous opposition to any relief in these proceedings, should now prevent this Court from issuing a declaration.



The Blood Tribe is entitled to the following declaration in light of these considerations and context:

Under the treaty land 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 in area than what was promised in Treaty No. 7; and

Canada, having provided the Blood Tribe with a reserve of 547.5 square miles in area, dishonourably breached the treaty land entitlement provisions of Treaty No. 7. …The appellants are awarded their costs throughout.”