Canada broke its treaty promise, but Blood Tribe is barred from suing, Supreme Court rules

The Supreme Court of Canada building in Ottawa, in June 2023.  (Adrian Wyld/The Canadian Press - image credit)
The Supreme Court of Canada building in Ottawa, in June 2023. (Adrian Wyld/The Canadian Press - image credit)

Canada acted dishonourably by breaking its treaty obligations to the Blood Tribe in Alberta but the band is barred from suing by the province's statute of limitations, the Supreme Court of Canada has ruled.

The high court on Friday handed down a unanimous decision in Jim Shot Both Sides v. Canada, a case that may impact the ability of First Nations countrywide to sue the Crown for historic treaty violations.

Justice Michelle O'Bonsawin, writing for the court, declared Canada's historic double dealing was "deplorable," but that the Blood Tribe failed to sue within the mandatory time frame.

The decision largely confirms the status quo and misses an opportunity to move the needle on reconciliation, said Kate Gunn, a partner at First Peoples Law, which represented Treaty 8 First Nations of Alberta as an intervener.

"I think for a lot of First Nations across Canada, it'll be a disappointing ruling," Gunn said.

"It affirms what the Blood Tribe has been saying all along … but it leaves the First Nation in a place where they're not able to get substantive relief from the courts. I think it raises a couple of problematic and challenging issues."

The band, in a statement posted online, said it's aware of the ruling and would provide an official response soon.

The claim revolved around Canada's admitted failure to set aside reserve lands for the band, also known as Kainai Nation, part of the Blackfoot Confederacy, about 200 kilometres south of Calgary.

The Blood Tribe were signatories to Treaty 7 in 1877 but long alleged the size of their reserve didn't match the treaty promise. They eventually sued Canada in 1980 alleging dishonourable conduct, fraudulent concealment and negligence.

Ticking clock

The case turned, however, on the narrow issue of whether the claim was barred by Alberta's statute of limitations, the time period in which lawsuits can be filed, which in this case was six years.

The misconduct was discovered by a Blackfoot researcher in 1971. If the clock began ticking then, the claim was barred by 1980. If the clock began ticking in 1982 when Canada's Constitution recognized and affirmed treaty and Aboriginal rights, it could proceed.

A Federal Court trial judge found the clock started ticking in 1982 and upheld the treaty-land entitlement claim. The Federal Court of Appeal reversed the ruling and blocked the suit.

The Blood Tribe appealed to the high court, which allowed the appeal in part. O'Bonsawin held that treaties were valid and enforceable long before Canada's Constitution was patriated.

Therefore, the tribe could've sued in 1971, so the 1980 claim is still statute-barred, she wrote. However, the "longevity and magnitude of the Crown's dishonourable conduct towards the Blood Tribe" was so great she declared Canada in breach of the treaty.

"Canada breached its treaty promises to the Blood Tribe. Canada did not provide the land as promised: 162.5 fewer square miles were set aside than should have been," O'Bonsawin wrote.

"This conduct is deplorable and does not reflect the fundamental objective of the modern law of treaty rights, which is the reconciliation of Indigenous and non-Indigenous peoples and their respective claims, interests, and ambition."

Despite the barring of the claim, issuing the declaration highlighting the Crown's dishonourable breach of Treaty 7 has the practical effect of confirming the band's legal rights and encouraging the reconciling of a fractured relationship, she reasoned.

"Declaratory relief in this context will promote reconciliation and help to restore the nation-to-nation relationship between the Blood Tribe and the Crown."

In other words, the First Nation can't sue but it can pursue negotiation with the legal declaration in hand or press its claim at the specific claims tribunal, where there are no time limits but where awards are capped at $150 million.

The Department of Crown-Indigenous Relations said the government is reviewing the ruling.

"Historically, the Government of Canada broke its promises to Indigenous Peoples, as the court found was the case with the Blood Tribe," wrote spokesperson Carolane Gratton.

"To help address past wrongs, we established the specific claims process. We continue to work in collaboration with Indigenous partners to make improvements. The Blood Tribe and the Government of Canada are actively in negotiations on resolving this past injustice."

'Cold comfort'

While the legal declaration is positive because it confirms the band's rights, the decision is also problematic because it leaves the Blood Tribe without a means to vindicate those rights, said Calgary-based lawyer Ron Maurice.

"It's cold comfort, really, to find out you have rights but you have no effective means of seeking a remedy," said Maurice, whose firm Maurice Law represented the Federation of Sovereign Indigenous Nations as an intervener.

Both Maurice and Gunn noted with some optimism that the court didn't address whether provincial limitation periods are unconstitutional because they prevent the Crown from being held accountable for long-term, historic violations.

Nevertheless, said Gunn the decision may be a step back for those who seek to right these wrongs because while a declaration is theoretically useful to motivate negotiations, the federal government still must honour it.

"As we've seen over decades, the Crown doesn't have a good track record in that respect, and so I think a decision that doesn't provide First Nations with meaningful access [to the court] to get a remedy and to hold the Crown accountable is a step back," she said.