Federal Court Of Appeal Overturns Limitations Ruling In Major Historic Treaty Claim

• Published date: 30 March 2022
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian ERA Perspectives, Kyle McMillan and Heather Maki

The Federal Court of Appeal recently handed down its decision in Canada v Jim Shot Both Sides (2022 FCA 20), finding that the major treaty land entitlement claim was time-barred by the Alberta Limitations of Actions Act.¹ This decision, which relates to 162.5 square miles of land that ought to have been included in the reserve of the Kainai (Blood) Tribe ("Blood Tribe") since 1883, clarifies the application of limitation periods to historical treaty claims. It overturns a Federal Court ruling that breaches of treaty obligations only became actionable in 1982 following the adoption of s. 35 of the Constitution Act, 1982.²

This decision has implications for historic claims by Indigenous groups and the remedies that may be available where there are potential limitation period issues. The First Nation has indicated that they are seeking leave to appeal to the Supreme Court of Canada. Regardless of the outcome, the First Nation can seek damages for the same claim through the Specific Claims process. However, if this ruling is not set aside or settled outside of litigation, there will be statutory limitations on the remedies that the Blood Tribe can obtain for the 162.5 square miles that ought to have been included in their reserve since 1883, including a $150 million statutory cap on damages.

Historical background

In 1877, the Blackfoot Confederacy and the Crown executed Treaty 7, establishing Blood Tribe Reserve No. 148. The size of the reserve was to be determined by the formula "one square mile for each family of five persons, or in that proportion for larger and smaller families".³ However, the Blood Tribe has known for some time that the size of their reserve (547.5 square miles) is smaller than it should be under Treaty 7. An action was launched against the Crown in 1980 for breach of treaty (though originally framed in breach of contract), breach of fiduciary duty, as well as fraudulent concealment and negligence (the "1980 Action"). The 1980 Action was held in abeyance for many years before ultimately coming to trial in 2019 in the Federal Court (2019 FC 789).

Decision of the Federal Court

Among several other findings, the Federal Court determined that the size of the Blood Tribe reserve was understated by 162.5 square miles. As a result, Canada failed to fulfil its obligations under Treaty 7 and breached its fiduciary duty in implementing the treaty, and in dealing with the Blood Tribe subsequent to the creation of the reserve. The Court concluded...