The Supreme Court of Canada's recent decision Shot Both Sides v. Canada, 2024 SCC 12 provides clarity on the applicability of limitation periods to matters involving historical treaty breaches. Underlying this decision was an action by the Kainai — also known as the Blood Tribe — alleging the Crown's breach of Treaty No. 7 in relation to their entitlement to reserve lands.

In Shot Both Sides, the Court made two significant holdings:

  • The Blood Tribe's claim for land and monetary compensation for treaty infringement was barred by provincial limitations legislation.
  • Declaratory relief is not statute-barred, and the Court issued a declaration affirming the Crown's treaty breach to assist in future reconciliation efforts.

The Court's holdings in Shot Both Sides are subject to important caveats.

First, the parties' arguments around limitation periods were narrowly framed. The Blood Tribe's sole argument was that its breach of treaty claim did not become a recognized legal action until the coming into force of s. 35(1) of the Constitution Act, 1982. Second, with respect to declaratory relief, the Court emphasized that a declaration is a discretionary remedy that turns on the unique context of each case, and not every claim with ongoing reconciliation efforts will necessarily give rise to this type of remedy.

At the core of the Blood Tribe's claim was the allegation that the Crown had breached Treaty No. 7 by not providing the Blood Tribe all of the reserve land they were entitled to under the treaty.

At trial, the Federal Court found that Canada had indeed breached the Blood Tribe's treaty land entitlement provided for in Treaty No. 7, such that its reserve was 162.5 square miles too small. On appeal, the Federal Court of Appeal found that the Blood Tribe's claim was statute-barred under Alberta's limitations legislation, which required the claims to be commenced within six years of being discovered in 1971.

The Blood Tribe appealed to the Supreme Court of Canada, arguing that its treaty claim was not actionable prior to 1982, with the coming into force of s. 35(1) of the Constitution Act, 1982. The Supreme Court disagreed, finding that treaty rights were not created by s. 35(1) but existed at common law, insofar as they are "enforceable obligations based on the mutual consent of the parties."

The effect of s. 35(1) is to provide constitutional protection to existing rights, and prevent their abrogation from federal, provincial and territorial law. Because the Blood Tribe's claim was actionable prior to the coming into force of s. 35(1), Alberta's limitations legislation applied and was effective to bar it.

Several interveners advanced arguments going beyond the scope of the parties' appeal, addressing the constitutional applicability or operability of limitations legislations to breach of treaty claims. The Court stressed that the appeal concerned only the narrow issue of whether the Blood Tribe's claim was actionable prior to the enactment of s. 35(1), and that it would not decide issues not necessary to the resolution of the appeal.

Overall, in Shot Both Sides the Supreme Court was highly critical of the Crown's historical conduct in relation to Treaty No. 7, referring to it as "deplorable" and "not reflect[ing] the fundamental objective of the modern law of treaty rights." The Supreme Court concluded that the law of limitations did not preclude a declaration that the Crown had breached Treaty No. 7. Further, the Court found that a declaration (a non-coercive form of relief), setting out a statement on the legal rights of the Blood Tribe would have practical utility, as it would help to advance reconciliation, identify the Crown's "dishonourable conduct", and set the stage for further efforts to restore the honour of the Crown.

Implications

This decision emphasizes that limitations legislation applies to historical treaty claims. In this case, it barred the Blood Tribe's claim for damages and land. However, the Court used declaratory relief as a tool to advance reconciliation and encourage the Crown to redress historical wrongs, even when that redress was not otherwise available through the courts.

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