In Shot Both Sides v Canada, the Supreme Court of Canada ("SCC") considered whether Indigenous communities can commence claims alleging that the Crown has contravened its treaty obligations if those claims would otherwise be statute barred. Specifically, the Court evaluated whether claims alleging breach of treaty obligations are subject to the six-year limitation period prescribed in Alberta's Limitations of Actions Act and the Federal Courts Act.
The plaintiff Blood Tribe's (the "Nation") claim against the Crown is premised, amongst other things, on the allegation that the size of its existing reserve did not comply with treaty land entitlement provisions found in Treaty No. 7, which set out a formula of one square mile per each family of five persons. When the Nation discovered that its existing reserve boundaries did not match the boundaries owed pursuant to the treaty land entitlement formula in 1971, it attempted to negotiate with the Minister of Indian Affairs and Northern Development (as the Ministry was then known). When those negotiations were unsuccessful, the Nation brought a claim against the Crown in 1980.
The claim alleged breach of fiduciary duty, breach of contract fraudulent concealment, and negligence against the Crown. The Nation sought a declaration and damages for breach of contract in relation to the Crown's failure to provide sufficient treaty land pursuant to the treaty land entitlement formula.
The trial judge concluded that the Crown had miscalculated the size of the Nation's reserve and found that the Crown's conduct during the creation of the reserve was unconscionable. On the issue of the applicable limitations period, the trial judge found that the claim was discoverable in 1971, but the applicable six-year limitation period did not begin to run until 1982, when section 35(1) of the Constitution Act, 1982 was enacted.
At the Federal Court of Appeal ("FCA"), the Court allowed the Crown's appeal on the limitation period issue. The FCA held that section 35 did not create a new cause of action for breach of treaty obligations, and therefore a cause of action existed when the claim was discovered in 1971.
The appeal to the SCC concerned the question of whether the Nation's claim was barred by the applicable six-year limitation period and specifically, whether the breach of a treaty land entitlement provision found in a treaty was actionable in Canadian courts prior to the enactment of section 35(1). The SCC was careful to clarify that this appeal was not dealing with the Constitutional question of whether limitation periods apply to Aboriginal claims on the whole.
The Nation argued before the SCC that, prior to the coming into force of section 35(1) in 1982, treaties were treated as political matters and not agreements that created legally binding obligations on the Crown. However, the SCC agreed with the FCA in its conclusion that the enactment of section 35(1) did not create a cause of action for the violation of treaty rights.
The SCC provided an analysis of whether the right to sue the Crown for breach of their treaty obligations existed in the common law prior to section 35 coming into force. Calling on previous decisions regarding the nature of treaties, the SCC noted that courts have long recognized that treaties were more than political promises and instead created enforceable obligations. In this way, treaties create obligations in much the same way as contracts, "albeit [contracts] of a very solemn and special, public nature."
The SCC also provided a helpful overview of historical caselaw including St. Catherine's Milling and Lumber Co. v The Queen, the "Annuities Case" (Province of Ontario v Dominion of Canada), and Henry v The King where courts recognized the enforceability of treaty commitments and their legal effect.
In conclusion on this issue, the SCC found that "[t]reaty obligations are enforceable and actionable from their execution. The conclusion of a treaty-making process creates active and binding obligations on the Crown, and this is well established in Canadian caselaw...This line of cases gave legal effect and judicial remedies, including declaratory relief and monetary orders, based on the obligations enshrined in treaties...".
The SCC also considered the issue of whether section 35 impacted the enforceability of treaties at common law. The Court noted that the purpose of section 35 was to constitutionally entrench the Crown's obligation to respect existing treaty rights and ensure that those rights could no longer be abrogated by legislation.
Although the SCC did find that the Nation's claim was commenced after the applicable limitation period and was therefore statute barred, it did award the Nation declaratory relief due to the "longevity and magnitude of the Crown's dishonourable conduct towards the Blood Tribe" and as a means towards reconciliation.
Declaratory relief is a type of discretionary remedy that outlines the parameters of a legal relationship or state of affairs between parties. It can also confirm the violation of a right. In this case, declaratory relief was granted to acknowledge that the Crown failed to provide the land it promised to the Nation upon the execution of Treaty No.7 and had made false representations that the Crown had met its treaty obligations.
The SCC stated that the issuance of a declaration can assist in the process of reconciliation and assisting parties to a dispute to resolve their issues, but should not be issued where there is no practical effect.
The Court also noted that declaratory relief can take on a "unique tenor in the context of Aboriginal and treaty rights" as a means to promote reconciliation. For example, in Aboriginal law cases such as this where a claim would otherwise be statute barred, a declaration can provide a "clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown's conduct in relation to those sacred promises" with an aim to spur reconciliatory efforts between the parties to account for the harm suffered. The clarity that can be provided via a declaration can "help to uphold the honour of the Crown, guide the parties in the reconciliation process mandated by s. 35(1) of the Constitution Act, 1982, and assist with efforts to restore the nation-to-nation relationship".
Although the SCC's reasoning regarding the legal nature of a breach of treaty obligation was not helpful for the Nation in this case, overall the Court's decision represents an affirmation of its previous jurisprudence regarding the sacred and binding nature of the promises made in historic treaties. The decision also provides helpful guidance on the scope and utility of declaratory relief in Aboriginal law claims, which can be useful where other legal remedies may not be available.
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