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Indigenous - Litigation Generally. Shot Both Sides v. Canada
In Shot Both Sides v. Canada (SCC, 2024) the Supreme Court of Canada considered an indigenous lawsuit where the plaintiff's claimed that they had been historically granted inadequate land in a treaty.
Here, as a prelude to considering the effect of the passage of s.35 ['Recognition of existing aboriginal and treaty rights'] of the Constitution on the running of limitation periods, the court considers the 'actionability' of indigenous treaty rights through the Canadian civil litigation system:B. Was a Breach of the TLE Actionable in Canadian Courts Prior to the Coming Into Force of Section 35(1) of the Constitution Act, 1982?
[36] Assessing whether a breach of Treaty No. 7 was actionable prior to 1982 requires an analysis of two issues: (i) the enforceability of Treaty No. 7 at common law, and (ii) the impact, if any, of the coming into force of s. 35(1) of the Constitution Act, 1982. If treaty rights were enforceable and actionable prior to 1982, then the limitation period applicable to the Blood Tribe’s claim began to run when the claim was discoverable, more than 10 years before the coming into force of s. 35(1).
(1) The Enforceability of Treaty No. 7 at Common Law
[37] Treaties are enforceable from the date of execution. While the terminology surrounding the enforceability of treaties may have changed over time, claims seeking to give legal effect to treaty terms were brought before the coming into force of the Constitution Act, 1982. Long before 1982, courts recognized that treaties were not merely political promises and created enforceable obligations, including “contractual rights” (see, e.g., R. v. White (1964), 1964 CanLII 452 (BC CA), 50 D.L.R. (2d) 613 (B.C.C.A.), at p. 618, aff’d (1965), 1965 CanLII 643 (SCC), 52 D.L.R. (2d) 481 (S.C.C.); J. Promislow, “Treaties in History and Law” (2014), 47 U.B.C. L. Rev. 1085, at pp. 1147-48). The Blood Tribe’s approach to this litigation reflects the enforceability of treaties prior to 1982 since their claim was framed as a breach of contract and was brought in 1980.
[38] The enforceability of treaties from the date of execution is well established in this Court’s caselaw without reference to s. 35(1). For example, this Court in R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, stated at para. 76: “Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties” (emphasis added). Similarly, this Court identified in Sioui, at p. 1044, that “what characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity” (emphasis added). Sioui built on Simon, where this Court emphasized that the agreement at issue was a treaty because it was “an enforceable obligation between the Indians and the white man” (p. 410).
[39] The enforceability of treaties from the date of execution is supported by the fundamental nature of the promises they enshrine. Courts, legislatures, and academic commentators have consistently acknowledged this significance: “treaties represent an Indian Magna Carta” (H. Cardinal, The Unjust Society: The Tragedy of Canada’s Indians (1969), at p. 28); “treaties are vital, living instruments of relationship” (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at p. 128); and “a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred” (Badger, at para. 41). In addition, the Crown is assumed to intend to fulfill these integral promises (para. 41; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 79; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paras. 19-20).
[40] The Federal Court of Appeal reached the correct conclusion regarding the enforceability of treaties prior to 1982. As noted at para. 100 of its reasons, “[t]reaties were entered into with the intention to create legal obligations and how that obligation is characterized is of no consequence to the question [of] whether their terms are enforceable.” Courts prior to 1982 clearly recognized the legal character of treaties: they create and embody enforceable obligations based on the mutual consent of the parties.
(a) Caselaw Demonstrates That Breach of Treaty Claims Were Actionable Pre-1982
[41] Courts recognized that treaty promises created enforceable and actionable legal duties prior to 1982. Although the characterization of treaties and their obligations may have varied, “it is too much of a leap to suggest that treaties were not justiciable in Canada through the 19th century; that the executive’s personal goodwill and subsequent actions could not give rise to legally or equitably enforceable obligations” (Promislow, at p. 1147). Instead, a long line of authorities upheld the enforceability of treaties at common law and the actionable duties they enshrine. These authorities were comprehensively summarized by the Federal Court of Appeal, but several are particularly notable.
[42] Early decisions of this Court and the Judicial Committee of the Privy Council (“JCPC”) characterized treaties as enforceable contracts. St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), is helpful as a starting point. The Blood Tribe relies on St. Catherine’s for the argument that Indigenous claims were treated as political matters. However, a close analysis of the JCPC’s reasons reveals that this case was not about the enforceability of treaty commitments. Instead, the appeal concerned Ontario’s control of Crown lands. Despite the limits of its analysis, St. Catherine’s sets out the JCPC’s understanding and characterization of treaties as “formal contract[s]” (see pp. 51-52 and 54-55).
[43] This Court and the JCPC recognized the enforceability of treaties a decade later in Province of Ontario v. Dominion of Canada (1895), 1895 CanLII 112 (SCC), 25 S.C.R. 434 (“Annuities Case (SCC)”), aff’d [1897] A.C. 199 (“Annuities Case (JCPC)”). The dispute concerned a treaty commitment to increase annuity payments over time to the Ojibway in the Lake Huron district of the Robinson-Huron Treaty. The JCPC recognized that the treaty made the provincial government “liable to fulfil the promises and agreements made on its behalf” and characterized the question as one of “contract liability for a pecuniary obligation” (pp. 205 and 213). This Court in the Annuities Case (SCC) also acknowledged the enforceability of the obligations: “. . . the Indians are of right, under the treaties, entitled to the payment of the arrears” (p. 498). Contrary to the Blood Tribe’s reliance on this authority in this matter, the reference to a treaty right being a “personal obligation” at p. 213 of the Annuities Case (JCPC) does not diminish the enforceability of the commitment since this characterization was only used to distinguish the obligations from a charge in land.
[44] The Annuities Case (JCPC) was built on in Henry v. The King (1905), 1905 CanLII 245 (CA EXC), 9 Ex. C.R. 417, where the Exchequer Court considered the enforceability of treaty commitments and recognized their legal effect. The Mississaugas of the Credit filed a petition seeking a declaration that they were entitled to certain moneys owed under a treaty. The court required the payment of the annuities demanded in the claim and supported the enforceability of the treaty in several respects. For example, the treaty was characterized as an enforceable agreement with consideration (p. 429). Furthermore, jurisdiction was based on the claim arising from an agreement or treaty. The court reached this conclusion because the Mississaugas’ right “rests upon the treaty or contract between the Crown and them, and . . . the court has . . . jurisdiction so to declare” (p. 446).
[45] The Exchequer Court in Dreaver v. The King (1935), 5 C.N.L.C. 92, continued to enforce specific treaty terms. Dreaver concerned a petition of right filed by the Mistawasis Band in Saskatchewan seeking amounts to reimburse education and medicine expenses that were improperly charged to its trust account. The band relied on a treaty promise requiring the Crown to provide free education and medicine. In granting the petition, the court relied on the treaty promises and gave them legal effect. The treaty at issue created an actionable right that the band relied upon to pursue relief.
[46] Caselaw nearing the coming into force of the Constitution Act, 1982 upheld the view that treaty obligations were enforceable and actionable at common law. For example, the Federal Court in Pawis v. The Queen, 1979 CanLII 4133 (FC), [1980] 2 F.C. 18, considered the relationship between the Ontario Fishery Regulations, SOR/63-157, and the treaty rights of the Ojibway and explicitly recognized that breaches of treaty obligations were actionable. When characterizing the treaty at issue, the court emphasized its enforceability:... the Treaty has to be taken as an agreement entered into by the Sovereign and a group of her subjects with the intention to create special legal relations between them. The promises made therein . . . were undoubtedly designed and intended to have effect in a legal sense and a legal context. The agreement can therefore be said to be tantamount to a contract, and it may be admitted that a breach of the promises contained therein may give rise to an action in the nature of an action for breach of contract. [Emphasis added; pp. 24-25.] [47] A similar result was reached in Town of Hay River v. The Queen, 1979 CanLII 4137 (FC), [1980] 1 F.C. 262, and R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (C.A.). In Hay River, the Federal Court held that the treaty at issue was not “simply a contract between those who actually subscribed to it” and instead “impose[d] and confer[red] continuing obligations and rights” (p. 265). In Taylor, the Court of Appeal for Ontario did not characterize the nature of the treaty at issue but held that the treaty had a clear legal effect: it preserved historic rights to hunt and fish. None of these authorities suggest that treaties were not enforceable prior to the coming into force of s. 35(1) of the Constitution Act, 1982.
[48] The Blood Tribe’s categorization of these authorities based on how the treaty was used (i.e. either as a “sword” or a “shield”) does not diminish the conclusions of the courts discussed above. The Federal Court of Appeal correctly dismissed this argument, holding that “[t]here is no logical reason to conclude that the use of a treaty to defend conduct has no bearing on the question [of] whether a treaty is enforceable, whereas an action to assert a treaty term, does” (para. 101). Enforceability at common law speaks to a clear and concise question: does the treaty have legal effect? Regardless of the form of proceeding, the authorities outlined above demonstrate that treaties were given legal effect, and thus were enforceable, prior to 1982. The ability for Indigenous interests, including treaty rights, to arise in an array of forums and proceedings does not diminish their legal effect or viability (R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at paras. 89-92).
[49] The Federal Court of Appeal appropriately considered and followed the authorities set out above, including by disregarding R. v. Syliboy, 1928 CanLII 352 (NS SC), [1929] 1 D.L.R. 307 (N.S. Co. Ct.). The Nova Scotia County Court in Syliboy held that the treaty at issue was a “mere agreement made by the Governor and council with a handful of Indians giving them in return for good behaviour food, presents, and the right to hunt and fish as usual” (pp. 313-14). As the Federal Court of Appeal correctly concluded, “Syliboy was incorrectly decided in its time, and remains so today” (para. 140). This Court previously reached this conclusion in Simon, noting that the decision “reflects the biases and prejudices of another era in our history” and relies on language that is “no longer acceptable in Canadian law” (p. 399). Syliboy did not and does not reflect the current state of the law.
[50] Treaty obligations are enforceable and actionable from their execution. The conclusion of a treaty-making process creates active and binding obligations on the Crown, and this is well established in Canadian caselaw. The position of the Blood Tribe that treaties were treated as political matters prior to 1982 conflicts with these authorities and undermines the binding nature of promises made in historic treaties. This line of cases gave legal effect and judicial remedies, including declaratory relief and monetary orders, based on the obligations enshrined in treaties (see, e.g., Henry, at pp. 445-47; Dreaver, at p. 122).
(b) Treaty No. 7 Was Enforceable and Actionable at Common Law
[51] The Federal Court of Appeal correctly held that Treaty No. 7 was enforceable at common law. This aligns with the authorities set out above and reflects the nature of treaties as binding legal instruments that must be upheld. The right to a judicial remedy where treaty obligations are breached is provided by the common law, grounded in the terms of the treaty at issue, and does not require s. 35(1) of the Constitution Act, 1982 or legislation enacted pursuant to s. 91(24) of the Constitution Act, 1867. This conclusion is reinforced when the impact of s. 35(1) is analyzed, as demonstrated below. . Shot Both Sides v. Canada
In Shot Both Sides v. Canada (SCC, 2024) the Supreme Court of Canada considered an indigenous lawsuit where the plaintiff's claimed that they had been historically granted inadequate land in a treaty.
Here the court upholds Alberta limitation statutes as a Crown defence against native treaty lawsuits:[3] The Blood Tribe has long claimed that the Reserve did not accord with the promises enshrined in Treaty No. 7. After a lengthy procedural history, the Blood Tribe sought declarations to that effect, an order directing Canada to procure lands for addition to the Reserve, and monetary compensation for lost use, mineral royalties, and rents. The Federal Court found that Canada was in breach of the TLE formula in Treaty No. 7 and the size of the Reserve it had provided was 162.5 square miles too small. Before this Court, Canada concedes its breach of Treaty No. 7 with respect to the TLE but argues that the Blood Tribe’s claim is statute-barred under Alberta’s Limitation of Actions Act, R.S.A. 1970, c. 209, and the Federal Courts Act, R.S.C. 1985, c. F-7. Section 5(1)(g) of Alberta’s Limitation of Actions Act sets out a six-year limitation period for “any other action not in [the] Act or any other Act specifically provided for”; pursuant to s. 39(1) of the Federal Courts Act, Alberta’s limitations statute applies to Federal Court proceedings “in respect of any cause of action arising in that province”.
[4] 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.
[5] 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.
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C. Were the Limitation Periods in Alberta’s Limitation of Actions Act Effective to Bar the Blood Tribe’s TLE Claim Prior to the Coming Into Force of Section 35(1) of the Constitution Act, 1982?
[58] For the reasons above, the Blood Tribe’s claim was actionable prior to the coming into force of s. 35(1) and thus the limitation period set out in Alberta’s Limitation of Actions Act was effective to bar the claim prior to 1982. The only argument the Blood Tribe advances to contest the running of the relevant limitation period is that the claim was not recognized at law. The Blood Tribe does not otherwise contest that its claim is captured by s. 5(1)(g) of Alberta’s Limitation of Actions Act.
[59] Section 5(1)(g) of Alberta’s Limitation of Actions Act is a residual basket clause. Specifically, it sets out a six-year limitation period for “any other action not in [the] Act or any other Act specifically provided for”. The Blood Tribe does not contest the trial judge’s finding that the TLE Claim was discoverable as early as 1971 or that the action was not commenced until 1980 (C.A. reasons, at paras. 6 and 210). As the Federal Court of Appeal concluded, “[t]he Federal Court found that . . . had a cause of action for breach of a treaty commitment been available, the six-year limitation period in paragraph 5(g) of The Limitation of Actions Act, 1970 would have barred the action. These findings are not contested and no issue is raised . . . as to whether, as a matter of statutory interpretation or constitutionality, paragraph 5(g) barred the action had a cause of action existed” (para. 210).
[60] The result that can be drawn from the analysis above aligns with authorities from this Court that recognized that the rules on limitation periods apply to Aboriginal right and treaty claims (see, e.g., Manitoba Metis, at para. 134; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at paras. 12-13; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at paras. 121 and 125-33). Although the constitutionality of applying limitations statutes to Aboriginal right and treaty claims was never addressed in these authorities, they recognized that such claims are subject to the general limitation periods of the province in which the action was commenced if captured by the respective limitations statute (Woodward, at § 20:18; J. T. S. McCabe, The Law of Treaties Between the Crown and Aboriginal Peoples (2010), at p. 421).
[61] Throughout this appeal, Canada drew attention to other means of advancing reconciliation and restoring the nation-to-nation relationship, including through negotiations and the Specific Claims Tribunal (R.F., at paras. 71-74). This Court has previously acknowledged the importance of reconciliation efforts outside of the courts and these processes may be meaningful to addressing the Crown’s breach of its obligations to the Blood Tribe (see, e.g., Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (“C-92 Reference”), at paras. 76-78; Delgamuukw, at para. 186; Desautel, at para. 87, quoting S. Grammond, Terms of Coexistence, Indigenous Peoples and Canadian Law (2013), at p. 139). In light of the prospect of future reconciliation efforts, it is necessary for this Court to consider the remaining relief sought by the Blood Tribe in its court action. . Johnson v. Canada
In Johnson v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and held that) the procedural rules that apply when "a claim is based on constitutional rights and treaty rights of Indigenous peoples" are the normal rules:[27] The claim that Mr. Johnson is attempting to bring before the Tax Court is a private, personal claim as he is seeking a return of the amounts that he has paid as excise tax, duty and GST on his importation of cigarettes in 2005. This Court, in Horseman v. Canada, 2018 FCA 119, confirmed that procedural and jurisdictional provisions applicable to the ETA will apply even if a claim is based on constitutional rights and treaty rights of Indigenous peoples:[4] ... In private, personal claims such as this, procedural and jurisdictional provisions apply and must be obeyed even where the constitutional rights and treaty rights of Indigenous peoples are asserted … [28] Therefore, the procedural and jurisdictional provisions applicable to bringing an appeal to the Tax Court under the ETA must be considered and applied. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an action where an indigenous group "sued Canada and Ontario for a declaration that they have Aboriginal title to submerged lands in a large section of Lake Huron and Georgian Bay, surrounding the Bruce Peninsula (the “Title claim”)" and "for breach of the promise made by the Crown in 1836, in Treaty 45 ½, to protect SON’s land from encroachments by “the whites” (the “Treaty claim”)".
In these quotes the court comments on the need for flexibility in indigenous litigation - here with pleadings amendment, discovery and further hearings:(6) Should the trial judge have invited further submissions to determine a process as to whether a claim to Aboriginal title to a smaller area could be established?
[101] In Tsilhqot’in, at para. 23, the Supreme Court stated that, where an Aboriginal title claim is varied from what was initially claimed, a technical approach to pleadings should not stand in the way of resolving the substance of the issues:[C]ases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. ....
[105] The trial judge noted that, in light of the lack of submissions and evidence with respect to Nochemowenaing, she did not have sufficient information to define the area. In addition, she found that it would not be fair to do so, given that Canada and Ontario had not had “an opportunity to raise any specific issues that may arise from any proposed boundaries in that area.” She noted that it would still be open to SON to pursue a different Aboriginal right that would recognize their historical spiritual practices.
[106] SON asks this court to remit this alternative claim to the trial judge “for a judgment, after further evidence and submissions, on the question of Aboriginal title to a portion of the Aboriginal title area claimed”.
[107] We accede to this request. SON should not have to begin a new proceeding to determine this issue. The trial judge in this case is uniquely qualified to assess this request because of her long familiarity with the evidence and issues. The trial judge can devise a procedure that is fair to both sides, including further pleadings, discovery, and hearings that she deems necessary to determine whether the Tsilhqot’in test has been satisfied for any limited portion of the broader area SON had initially claimed. . Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the general nature of indigenous litigation:(6) The court must take a generous approach to pleadings in Indigenous cases
[25] This court must bring a somewhat generous and forgiving approach to what might be seen as imprecisions in pleading, particularly in Indigenous cases, in line with McLachlin C.J.’s observations in Tsilhqot’in Nation, that “a functional approach should be taken to pleadings in Aboriginal cases”, where “the legal principles may be unclear at the outset, making it difficult to frame the case with exactitude”: at paras. 20-21. A “technical approach” to pleadings is to be avoided so that “rights issues [can] be resolved in a way that reflects the substance of the matter” in aid of the “project of reconciliation”: Tsilhqot’in Nation, at para. 23.
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[55] Second, it is understandable that the Algonquins would prefer a trial over judicial review in this case, given the plethora of competing expert reports in which credibility and reliability will play key roles. The Supreme Court has pointed out that a civil action might sometimes be the preferred route. In Lax Kw’alaams Indian Band v Canadian (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, Binnie J. said, at para. 11,If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings. In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues. [56] Binnie J. added, at para 12:At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel. Litigation is invariably preceded by extensive historical research, disclosure, and negotiation. … The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders. [57] Although Binnie J. was addressing litigation between a First Nation and the Crown, these observations apply with necessary modifications to litigation involving competing Aboriginal claims and the Crown.
[58] Then J.’s observations in Keewatin vs. Ontario (Minister of Natural Resources) (2003), 2003 CanLII 43991 (ON SCDC), 66 O.R. (3d) 370 (Div. Ct.), a treaty rights case, are also apt. In quashing an application for judicial review with leave to bring an action, he observed, at para. 59: “a great deal of evidence, including expert evidence, will be called by the parties on a number of disputed facts and issues, and it is inappropriate to deal with these disputes of material fact by way of summary application”. He concluded, at para. 63: “that the interests of justice would be best served if the issues raised on this application are determined at trial.” He noted, at para. 53 and following, that the court has jurisdiction under rule 38.10(1) to convert a judicial review application into a trial.
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