Jim Shot Both Sides v Canada, 2019 FC 789

Claim allowed in part. A First Nation signatory to Treaty 7 filed a claim in 1980. Breaches of treaty obligations only became actionable with the passage of the Constitution Act, 1982. Canada is liable for the breach of treaty, but all other claims are time-barred. 

Indigenous Law Centre – CaseWatch Blog

In 1877, Treaty 7 was made between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians. Treaty 7 promised the Blood Tribe and each of the others, a reserve. The Blood Tribe reserve is at issue in this matter. It is set out in Treaty 7, however, that location was changed by agreement between the Blood Tribe and Canada.

Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 [“1882 Survey”] and the second was done in 1883 [“1883 Survey”]. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880. The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it.

Canada pleads that this action is time-barred by virtue of the Limitations Act. The Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982. The Blood Tribe commenced this action by Statement of Claim filed in 1980.

The Court found that a reserve for the Blood Tribe was created prior to 1883. The reserve that was set apart for them is that laid out by the 1882 Survey. It could not be reduced in size without obtaining a surrender from the Blood Tribe. There is no evidence how Canada arrived at the 650 square mile reserve created by the 1882 Survey. It appears to be based on a Blood Tribe population of 3250. Absent evidence as to how Canada arrived at the population figure it appears to have used, and given that the Court’s finding that the actual population was 3550, it is concluded that Canada failed to fulfill its treaty obligation.

The material facts as set out in the original Statement of Claim are that the Blood Tribe was a party to Treaty 7, that under the Treaty the Blood Tribe was entitled to a reserve of a size to be determined based on the Treaty Land Entitlement process [“TLE”], that Canada provided a reserve, but that the reserve provided was not of the required size under the TLE. The Blood Tribe sought a declaration that it is entitled to additional lands, or in the alternative, damages. These are the material facts that touch on the claim of breach of treaty. They are few and straightforward.

Paragraph 5(1)(g) of the Limitations of Actions Act provides that an action for breach of treaty must be commenced within six years after the cause of action arose. It may seem odd, but here the Blood Tribe commenced this action two years before the cause of action arose. It did so because it pleaded the action as if it were a breach of contract claim. As result of the view of the Supreme Court of Canada that treaties are not contracts (R v Sundown, [1999] 1 SCR 393; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58), it has turned out that the claim of the Blood Tribe is not one for breach of contract but rather is a claim for breach of treaty.

The Blood Tribe since commencing this action has been the beneficiary of the entrenchment of treaty rights into the Constitution Act, 1982. Canada has not put forward any arguments on the temporal application of the Constitution Act, 1982 to suggest that it would not apply to an ongoing action. For these reasons, the claim of the Blood Tribe for breach of the TLE promise in Treaty 7 is not time-barred.

For the reasons above, the claim of the Blood Tribe is allowed, in part. The Court finds that Canada is in breach of the TLE formula in Treaty 7 in regards to the size of the Blood Reserve. The Plaintiffs were entitled under the TLE formula to a reserve of 710 square miles, whereas the current Reserve is 547.5 square miles. Canada is liable to the Blood Tribe for this breach of Treaty. All other claims are dismissed as time-barred.

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