Samson Indian Nation v. Canada; Ermineskin v. Canada, File Nos. 37280 And 37277, Supreme Court Of Canada (Moldaver, Côté And Rowe JJ.), 9 March 2017

Download the entire Aboriginal Legal Issues e-Newsletter — March 9, 2017.

The Supreme Court of Canada dismissed a leave application filed by two Alberta First Nations in regards to a 2015 order of the Federal Court, upheld by the Federal Court of Appeal in September 2016, which had dismissed their actions on limitation grounds.

The underlying litigation concerns oil royalties between 1973 and 1985, and whether the plaintiffs are entitled to compensation due to the "made-in-Canada" oil price program established under the National Energy Program. The claim of the Samson Band was filed in September 1989, and the companion claim in Ermineskin was filed in May 1992. Canada applied for summary dismissal based on statutory and equitable limitation periods.

The summary dismissal application was allowed by the Federal Court: 2015 FC 836. Russell J. held that Alberta limitations legislation applied, rather than the Ontario statute (as argued by the plaintiffs). Citing cases such as Wewaykum Indian Band v. Canada , 2002 SCC 79 and Canada (Attorney General) v. Lameman, 2008 SCC 14 [sub. nom. Papaschase Indian Band v. Canada], Russell J. held that limitations legislation, as well as the principles of laches and acquiescence, are "applicable to claims against Canada even where the rights at stake are constitutionallyprotected treaty and Aboriginal rights". The Court held that the Lameman decision left "no doubt that the Supreme Court of Canada felt there was no issue of constitutionality when it comes to applying limitations legislations to claims involving Aboriginal and treaty rights". The exceptions to this rule, as discussed in Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, were not applicable here. Russell J. also held that limitation periods do not expunge or extinguish rights, but only bar remedies. Alberta legislation establishes a six-year limitation period. The plaintiffs were aware of the facts by 1978, and made a strategic choice not to bring a claim at that time. The Court rejected the argument that limitations legislation should not apply due to factors such as the Honour of the Crown. Such a result would make the plaintiffs immune from limitation periods, and recognize a right to sue on their treaty rights at any time that they please.

In September 2016, the Federal Court of Appeal upheld this decision: 2016 FCA 223. The majority held that the plaintiffs had not demonstrated any error of law or any palpable and...