Supreme Court justices challenge Crown over statute of limitations arguments over Treaty 7 pledge

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A federal government lawyer acknowledged at a Supreme Court of Canada hearing that Ottawa had acted “dishonourably” in reneging on a land promise made to a First Nation, but said the Indigenous group can only negotiate, not sue, because of time limits on filing lawsuits.

Members of the court expressed skepticism about the federal position, however, with one judge asking whether Indigenous peoples were supposed to return to the days of a “supplicant role,” and another asserting that the government had refused to negotiate for decades.

“You can imagine people hearing that the Crown is now ready to negotiate being a little skeptical of that after this very long period of refusal,” Justice Nicholas Kasirer of Quebec told lawyer Dayna Anderson.

The case, focused on a 145-year-old treaty with the Blood Tribe of Alberta, Canada’s largest reserve, was described by a participant as one of the most important on reconciliation ever heard by the country’s top court: It could affect more than 1,000 cases alleging violations of treaty promises currently before the courts or a land-claims tribunal. At stake is whether Section 35 of Canada’s 1982 Constitution, which protects treaty rights, supersedes provincial statutes of limitations.

The case has a complicated history. Treaty 7, signed in 1877, pledged one square mile (2.58 square kilometres) for every five people. The Blood Tribe filed a lawsuit in 1980, accusing the federal government of acting dishonestly in the 1880s by “shrinking the reserve” in a new survey of lands, and by later saying the tribe had received more than promised, not less. Elders viewed as keepers of traditional knowledge had for years spoken of the “shrinking reserve,” and band members researched the matter in the early 1970s.

In 2019, Federal Court Justice Russel Zinn found the federal government had acted unconscionably and fallen well short of keeping its promise. The reserve should have been 710 square miles (1,814 square kilometres) but was only 547.5 (1,412.5). The federal government appealed, not on the grounds that it broke its promise, but that Alberta’s six-year time limit stops the case from going forward.

Under questioning from Justice Mahmud Jamal of Ontario, Ms. Anderson accepted Justice’s Zinn’s finding that the federal government’s behaviour had been unconscionable. But, she said, the Blood Tribe could negotiate a settlement with Ottawa, or press their case at the Specific Claims Tribunal, an independent body.

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Denying access to the courts “doesn’t hinder reconciliation,” she said, because the Blood Tribe has other means to press their case.

Justice Sheilah Martin, a former law school dean and appeal-court judge from Alberta, said Ottawa was proposing that Indigenous peoples give up their rights and beg for what they want.

Not being able to go to court means “you lose the right to insist and you lose a court order that says that this is your due under a particular treaty – and you’re replacing it with the old negotiation or supplicant role of going to the Crown and asking for something.”

Justice Jamal noted that the limitations period had barely expired in the context of a 145-year-old treaty.

The clock on the six years doesn’t start until the person or group that wishes to sue knows the facts involved, which happened in 1971 for the Blood Tribe, according to Justice Zinn.

“It seems distracting to be talking about limitations missed by four years in context of deception over the course of a century,” Justice Jamal said.

In 2003, the federal government rejected the band’s claim when it was made before the Indian Claims Commission. And in 2007, when that tribunal urged negotiations, Ottawa said no.

Ms. Anderson said the federal government would accept a declaration from the court that the Crown’s honour is at stake in a negotiation of the matter with the Blood Tribe. Justice Malcolm Rowe said that the comment left him “completely confused,” and that the government seemed to accept that such a declaration could form the basis of future litigation.

“Why are we here?” he asked.

Justice Martin noted that there is no limitation period at the Specific Claims Commission, and said she found the federal position “interesting.”

“You insist rigorously in the judicial context on the limitation,” Justice Martin told Ms. Anderson, “and want us to take solace in the fact that you’re going to another body where you recognize that the honour of the Crown requires there not to be a limitation period.”

Several Indigenous groups appeared before the court as intervenors to argue that treaty rights should not be undermined by statutes of limitations. Ronald Maurice, a lawyer for the Federation of Sovereign Indigenous Nations, called the federal position illogical.

“The constitutional recognition of a right would be meaningless, and that could not have been the intention” of Section 35, he told the judges.

Kate Gunn, a lawyer representing Treaty 8 First Nations of Alberta, said the Crown’s treaty promises must always be fulfilled, and “limitations legislation should not ever be used as a basis to prevent the fulfilment of those obligations.”

The court heard the case with just seven judges, as Prime Minister Justin Trudeau has not filled a position vacant since June, and as Chief Justice Richard Wagner prefers not to sit eight and risk a tie. (Justice Andromache Karakatsanis of Ontario sat out.) Justice Michelle O’Bonsawin, the lone Indigenous judge on the court, attended from a separate room because she has COVID-19.