On April 12, 2024, the Supreme Court of Canada released its unanimous decision in Shot Both Sides v Canada.1 The SCC held that treaty infringement claims were enforceable and actionable in Canadian courts prior to the coming into force of s. 35(1) of the Constitution Act, 1982,2 and thus the claim was barred by limitations. However, the SCC held declaratory relief was warranted in the circumstances and issued declarations to restore the relationship between the Blood Tribe and the Crown and to promote reconciliation. The SCC's award of declaratory relief could have significant implications for First Nations in treaty entitlement and other historic cases, where a legal statement of rights, Crown duties, and confirmation that Crown conduct was dishonourable could help advance justice.
Background
The case concerned a treaty land entitlement ("TLE") claim by the Blood Tribe, a signatory of Treaty No. 7. Treaty No. 7 established the Blood Tribe Reserve No. 148, the size of which was to be set based on the Treaty's TLE formula. After research in 1971 confirmed that the reserve boundaries did not align with the TLE formula, the Nation approached the Minister of Indian Affairs, who refused to negotiate. Accordingly, in 1980 the Blood Tribe initiated an action in Federal Court, seeking a declaration and damages. The action was put into abeyance pending an assessment under the Specific Claims Policy and was reactivated several years later when that process proved ineffective.
In the recently reactivated action, the Federal Court found that the Crown did not respect the TLE formula and that the reserve was 162.5 square miles too small. The Federal Court also held that the limitation period did not start until 1982, with the coming into force of s. 35(1) of the Constitution Act, 1982, and thus the remedies sought were still available to the Blood Tribe.3 Canada appealed.
The Federal Court of Appeal held that the claim was statute-barred: Alberta's Limitation of Actions Act (which applies to Federal Court proceedings by virtue of s. 39(1) of the Federal Courts Act) imposed a six-year limitation period on the claim, and because the claim was discovered in 1971 but not filed until 1980, the FCA held it was out of time.4
Summary of the Supreme Court of Canada's decision
Applicability of provincial statutes of limitations to treaty infringement claims
The SCC's decision turned on whether the Blood Tribe's claim was actionable in Canadian courts before 1982, prior to s. 35(1) coming into force. The SCC held that it was, noting that treaties are binding legal instruments and enforceable at common law from the date of their execution. While s. 35(1) provided constitutional protection to existing Aboriginal and treaty rights, it did not create them. Here, the limitation period set out in Alberta's Limitation of Actions Act, as referentially incorporated into federal law by s. 39(1) the Federal Courts Act, was effective to bar the claim for damages because the Blood Tribe's claim was actionable before 1982 and not brought within six years of being discovered in 1971.
The Blood Tribe did not ask the SCC to assess the constitutional applicability of Alberta's Limitation of Actions Act to breach of treaty claims. The SCC therefore defined the appeal narrowly and stated that the constitutional applicability of limitations legislation was not at issue. The SCC noted, however, that its prior decisions never addressed the constitutionality of applying limitations statutes to Aboriginal rights and treaty claims. This provides an opening for Nations to challenge the constitutional applicability and validity of limitations legislation in future proceedings.
Declaratory relief
While the claim for damages was statute-barred, the SCC held declaratory relief was warranted given the "longevity and magnitude of the Crown's dishonourable conduct towards the Blood Tribe".5 Declaratory relief was necessary to restore the nation-to-nation relationship and promote reconciliation between the Blood Tribe and the Crown.
The SCC affirmed that statutory limitation periods do not prevent courts from issuing a declaration on the constitutionality of the Crown's conduct.6 The SCC stressed that declaratory relief is a means to promote reconciliation by providing a clear statement of the legal rights of the Nation, the Crown's duties, and the Crown's conduct. Further, the SCC held that declarations can serve a corrective function by providing an authoritative statement of the Crown's infringement of Aboriginal rights. In turn, this may spur efforts between the parties to address wrongs suffered.
The SCC's explanation of the corrective function of declarations and its confirmation that declaratory relief is not statute-barred strengthen the bargaining position of Nations seeking justice where provincial limitation laws may otherwise prevent them from bringing an Aboriginal or treaty claim.
Importantly, the utility of declaratory relief hinges on a willing Crown. The SCC noted that the effectiveness of this remedy is partially based on the willingness of the Crown to acknowledge "the declaration promptly and [act] honourably in determining the means for advancing reconciliation."7 The SCC provided no further guidance on how the Crown should act. Therefore, the practical utility of this remedy is dependent, in part, on the Crown wanting to restore the nation-to-nation relationship, which is at the whim of differing political priorities.
Footnotes
1 Shot Both Sides v Canada, 2024 SCC 12 ["Shot Both Sides"].
2 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, C 11, s 35(1).
3 Jim Shot Both Sides v Canada, 2019 FC 789.
4 Canada v Jim Shot Both Sides, 2022 FCA 20.
5 Shot Both Sides at para 5.
6 Shot Both Sides at para 63, affirming Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14.
7 Shot Both Sides at para 70.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.