ABKB Decision Confirms That Constitutionally Protected Aboriginal Rights Are Captured By Limitation Defences

• Published date: 21 November 2022
• Law Firm: Cassels
• Author: Mr Thomas Isaac, Alyshea Surani and Tamara Prince

Relying on limitations and laches, the Governments of Alberta and Canada (Crowns) applied for summary dismissal¹ of a 2003 action commenced by the Stoney Nakoda First Nations (collectively) and the Stoney Indian Band or tribe (collectively, the Stoney) against the Crowns, wherein the Stoney sought a wide range of remedial relief as well as a declaration of Aboriginal title and rights to land in southern Alberta.

In granting partial summary judgment, the Court in Wesley² referenced the Supreme Court of Canada's decisions in Manitoba Métis,³ Wewaykum,⁴ and Lameman,⁵ and confirmed that Aboriginal claims are subject to provincial limitations legislation even where rights at stake are constitutionally protected, unless there is a claim for declaratory relief.

Accordingly, the Court decided that non-declaratory (remedial and coercive) relief was barred by limitations legislation, but that the declaratory relief (and hybrid declaratory relief, i.e., relief that may be coercive by granting exclusive possessory rights, or that may affect rights of third...