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

• Published date: 21 November 2022
• Subject Matter: Government, Public Sector, Indigenous Peoples
• 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 parties) sought could proceed towards trial.

The Court left the door open with respect to the application of a laches defence in connection with the Aboriginal rights and title claims in this particular case and suggested that the availability of any such laches defence would be best decided later in the proceedings with the benefit of additional evidence regarding the reasons for the Stoney's delay and the prejudice to non-parties that might arise from the declarations(s) sought.

IMPLICATIONS: LIMITATIONS AND LACHES DEFENCES

The Stoney argued that their claims for recognition of Aboriginal rights and title cannot be barred by limitation legislation or the doctrine of laches (even if the statement of claim was filed outside of the time prescribed by the statue), because:

• The Amended Statement of Claim (filed in 2014) is in essence a claim for declaratory relief, which is not subject to limitations Aboriginal rights and title are sui generis rights and have no life until recognized by the Crown or declared to exist by the Courts (Manitoba Métis⁶).

• The availability of recourse to the Courts to establish rights and title claims is essential to reconciliation, and that adherence to the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (September 13, 2007) (UNDRIP) is crucial.

• To find otherwise would effectively extinguish their rights under s. 35 of the Constitution Act, 1982.

The...