Supreme Court Grants Leave To Appeal In Treaty Land Entitlement Case

• Jurisdiction: Canada
• Law Firm: MLT Aikins LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Ms Jessica Buhler, Rangi Jeerakathil and Erica Klassen
• Published date: 09 February 2023

On February 2, 2023, the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal's decision in Canada v Jim Shot Both Sides, 2022 FCA 20.

Kainai Nation (also known as the Blood Tribe) is part of the Blackfoot Confederacy, which entered into Treaty 7 with Canada in 1877. Kainai originally brought a claim against Canada in Federal Court in 1980 on the grounds that they had not received their full entitlement to reserve land under Treaty 7.

Kainai argued that Canada breached its Treaty promises and fiduciary duty when it failed to provide Kainai with reserve lands consistent with the promised reserve size in Treaty 7. In defence, Canada argued that the limitation period that applied to Kainai's claim had expired.

In a 2019 decision, the Federal Court agreed with Kainai that Canada had breached its Treaty commitments and fiduciary duty, finding:

• Canada had a duty to provide a reserve for Kainai in keeping with the provisions of Treaty 7, which was not done.
• Canada failed to uphold its duty of loyalty and good faith to Kainai in creating the reserve.
• Canada breached its duty of full disclosure to Kainai after it incorrectly informed the Nation that the reserve was actually larger than Kainai's entitlement under Treaty 7.
• Canada failed to protect and preserve Kainai's proprietary interest in the reserve from exploitation after it leased parts of the reserve to third parties without consulting Kainai or obtaining any surrender.

On the limitation period issue, the Federal Court found that because First Nations could not pursue breach of Treaty claims in Canadian courts before 1982 - with the advent of 35 of the Constitution Act, 1982 - the limitation period that applied to Kainai's claim only began to run in 1982.

On appeal, the Federal Court of...