Shot Both Sides v Canada, 2024 SCC 12 – Case Summary

This case concerns the application of the Alberta Limitation of Actions Act to a breach of the land entitlement provision under Treaty 7 (1877).

Background

Treaty 7 was signed on September 22, 1877, between the Crown and the Blackfoot, Tsuut’ina, and Stoney-Nakoda peoples at Blackfoot Crossing in what is now southern Alberta. The Treaty included a provision regarding land entitlement, under which the Crown promised one square mile of land for each family of five persons. In 1882, when Canada allotted the Blood Tribe Reserve No. 148, the initial survey described the reserve as 650 square miles in area. In 1883, Canada re-surveyed the reserve to exclude land under grazing leases, reducing the reserve to 547.5 square miles. In 1888, the Blood Tribe expressed concern to the Crown regarding the size of the reserve, but the Crown did not adjust the reserve.

Photo credit: Krista Roberston

In 1969, a Blackfoot researcher submitted a report to the Blood Tribe regarding the 1882 and 1883 surveys. In 1971, the Blood Tribe conducted more research and found that the population of the Blood Tribe from 1879 to 1884 was not congruent with the amount of land reserved for them based on the formula under the Treaty and that the Blood Tribe was owed 162.5 square miles of land. In 1976, they sought to negotiate with Indian Affairs and Northern Development, but the Minister declined.

In 1980, the Blood Tribe filed an action in the Federal Court alleging breach of treaty. The Blood Tribe amended the claim in 1999 to allege that the claim did not arise until the enactment of section 35 of the Constitution Act, 1982, which recognized and affirmed “aboriginal and treaty rights.” The Federal Court confirmed that the Crown breached its treaty obligations to the Blood Tribe by reducing the size of the reserve in 1883, but held that the claim was barred by the 6-year limitation period in the Alberta Limitation of Actions Act, RSA 1980, c. L-15. The Federal Court of Appeal affirmed that the Constitution Act, 1982 did not alter the date on which the claim arose because treaty rights flow from the treaty, not the Constitution, and that the claim was therefore barred under the Limitation of Actions Act. The Blood Tribe appealed to the Supreme Court of Canada.

Issues

The Supreme Court of Canada was tasked with deciding whether the breach of treaty claim was a cause of action prior to the enactment of section 35 of the Constitution Act, 1982, and whether the limitation periods under the Limitation of Actions Act were effective prior to that date such that the Blood Tribe’s claim was barred due to the passage of time.

Photo credit: Doane Gregory

Analysis

The Supreme Court held that the Constitution Act, 1982 did not create treaty rights, nor did it create a cause of action for breach of treaty. Justice O’Bonsawin, writing for a unanimous Court, upheld the lower court’s decision that the Crown breached the Blood Tribe’s treaty rights. The Court confirmed that treaty rights are enforceable and actionable prior to the coming into force of the Constitution Act, 1982. The Court confirmed that section 35 of the Constitution Act, 1982 gives treaty rights constitutional status, and prevents Parliament or a provincial legislature from extinguishing or infringing those rights, except where the infringement is justified. The Court held, however, that although the Blood Tribe’s claim was actionable before the enactment of the Constitution Act, 1982, it was subject to the Limitation of Actions Act, which had the effect of barring the claim. The Court did not address whether it was constitutionally valid to apply limitation statutes to Aboriginal or treaty rights because that question was not before the Court.

The Court held that limitations statutes cannot bar courts from issuing declarations on the constitutionality of the Crown’s conduct or the honour of the Crown. The Court affirmed that such declaratory relief can assist with extra-judicial negotiations and that courts have broad authority to grant such relief. The Court affirmed that there is no need to discuss the declaration’s effects, only whether the declaration will have practical utility. In this case, the Court chose to issue declaratory relief to assist the Crown in reconciliation by repairing its conduct with Indigenous Peoples, uphold the Crown’s sacred promises, and clarify the duty of the Crown to Indigenous Peoples by providing a clear statement of their legal rights.

The Supreme Court declared that (1) the Blood Tribe was entitled to a reserve equal to 710 square miles under Treaty 7, (2) their current reserve is smaller than what was promised under Treaty 7, and (3) Canada acted dishonourably by breaching the provisions of Treaty 7.

Key Takeaways

This decision clarifies how limitations legislation applies to breach of treaty claims. The effect of the decision is that, in most circumstances, negotiation will be the only viable option for an Indigenous group to resolve a historical breach of treaty claim. Without access to the courts, however, a claimant will have limited leverage in the negotiation and must rely upon the Crown to act honourably and in good faith to provide fair and meaningful redress for a historical breach of treaty.