By Shari Narine
Local Journalism Initiative Reporter
The Supreme Court of Canada has opened the door to the Blood Tribe to argue its case that Canada breached its treaty obligations in land commitment to the southern Alberta First Nation.
“We believed that this was a case that the Supreme Court of Canada would want to hear as it raises important aspects of s.35 of the Constitution Act and the enforcement of treaty rights never before addressed by the Supreme Court. We were correct,” said Blood Tribe Chief Roy Fox and council in a statement to Windspeaker.com Feb. 3.
On Feb 2, the highest court in the country granted leave to appeal on Canada v Jim Shot Both Sides and Roy Fox et al. The action is more commonly known as the “Big Claim.”
The Big Claim refers to land that was shorted to the Blood Tribe reserve when the Blackfoot Confederacy and the Crown executed Treaty 7 on Sept. 22, 1877. Under the treaty, the size of the reserve was to be established through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families.” The Blood Tribe has long claimed that the actual size of its reserve did not equal what was promised by the treaty.
Last year the Federal Court of Appeal ruled that a claim for more land for the reserve was time-barred by Alberta’s Statute of Limitations.
Legal action began in the federal court in 1980, but the action was in abeyance for decades.
Finally in 2016 the first phase of the court trial went ahead with oral history received from Blood members. The second phase proceeded in 2018 to hear facts and expert witnesses and to make a determination on liability.
In a 2019 ruling, the trial judge in the federal court closed one door to the Blood Tribe but opened another.
The judge found that the Blood Tribe’s claims could have been pursued as early as 1971, but action had only begun in 1980 and therefore a land entitlement breach was time-barred through Alberta’s Statute of Limitations.
However, the trial judge ruled that an action for breach of a treaty commitment could not have been pursued in a Canadian court prior to the advent of s. 35 of the Constitution Act, 1982 and therefore that action fell within the limitations statute.
The trial judge concluded that Canada was in breach of its treaty obligation to provide a reserve equal to the treaty land entitlement provisions and that the size of the reserve should be 162.5 square miles more. Presently the reserve is 547.5 square miles, which still makes it the largest in Canada.
The Crown appealed the decision.
The Federal Court of Appeal allowed the appeal and ruled against the Blood Tribe.
The Court of Appeal ruled that treaty rights are not the same as Aboriginal rights and took issue with the trial judge’s finding that treaties were not enforceable prior to 1982. The Court of Appeal went a step further, ruling unanimously that all claims of the Blood Tribe were time-barred.
“The Blood Tribe Council is pleased that the Supreme Court of Canada has granted Leave to Appeal and we continue to look to Canada to live up to its promises of reconciliation and to not rely on limitation defenses when they clearly breach Treaty promises,” said chief and council in their statement.
In a blog, Kyle McMillan, associate with McCarthy Tetrault law firm, said the Federal Court of Appeal’s decision “clarifies the application of limitation periods to historical treaty claims.”
Further, McMillan wrote, “This decision has implications for historic claims by Indigenous groups and the remedies that may be available where there are potential limitation period issues.”
McMillan pointed out that the Blood Tribe could pursue damages through the Specific Claims process, which was noted in the decision rendered by the Federal Court of Appeal.
The federal government’s Specific Claims Tribunal was established to address grievances from the failure to fulfill historic treaty obligations or other legal obligations relating to First Nations lands and other assets.
“However, if this ruling is not set aside or settled outside of litigation, there will be statutory limitations on the remedies that the Blood Tribe can obtain for the 162.5 square miles that ought to have been included in their reserve since 1883, including a $150 million statutory cap on damages,” McMillan wrote.
“The Blood Tribe continues to fight to hold Canada to its treaty obligations, both through litigation as well as negotiation,” said chief and council in their statement.
Shari Narine is a Local Journalism Initiative Reporter with Windspeaker.com. The LJI program is federally funded.