The Supreme Court of Canada has ruled that the federal government reneged on a 145-year-old land promise to an Indigenous community in Alberta – but all the court can do is make a symbolic declaration that the conduct was wrong and hope Ottawa acts in good faith and tries to repair the harm it did.
In its decision Friday involving the Blood Tribe, who live on Canada’s largest reserve, the court said its hands were tied by an Alberta law setting out a six-year time limit on certain lawsuits. Even where such time limits exist, though, courts may still make statements of principle about who is right and who is wrong, the court ruled.
The court left no doubt about where it stood on the rights and wrongs. It called the federal conduct “deplorable” and “dishonourable.” It said treaty promises are “sacred” and should be honoured by the Crown “so long as the sun rises and the river flows.” Yet Ottawa had shortchanged the community by 162.5 square miles – 421 square kilometres – it said in a 7-0 decision.
Blood Tribe Chief Roy Fox said he is disappointed that the time limits apply but pleased about the declaration.
“The Blood Tribe is trusting that [the federal government] will understand that it needs to fulfill its Treaty obligations and that the rest of Canada is watching,” he said in a statement.
The ruling has potentially broad consequences. More than 1,000 cases alleging violations of treaty promises are currently before the courts or a land claims tribunal. Some of those could lose access to the courts over statutory time limits, weakening the leverage of First Nations.
But the Supreme Court expressed its belief that a court’s declaration in Indigenous matters can help bring about good-faith negotiations and reconciliation. It depends, the court said, “on the government acknowledging the declaration promptly and acting honourably.”
Justice Michelle O’Bonsawin, an Abenaki from Northern Ontario and the only Indigenous member in the court’s history, wrote on behalf of a unanimous court that declarations can have an impact.
“That this assumption can be difficult in breach of treaty cases, as reconciliation efforts often follow decades of dishonourable Crown conduct and adversarial litigation, does not diminish the possible salutary effect of declarations.”
The ball is now in the federal government’s court.
“It’s all on [the federal government] to choose whether it wants to take this opportunity to repair its dishonour,” said Kerry Wilkins, who teaches law at the University of Toronto, in an interview.
The federal government, which fought the case for decades until acknowledging it acted “unconscionably” in a hearing last October at the Supreme Court, responded with a statement that it is “actively in negotiations on resolving this past injustice” with the Blood Tribe.
The Blood Tribe, a member of the Blackfoot Confederacy of First Nations, entered into a treaty with the Canadian government in 1877. It was promised one square mile of land for each family of five. But the territory in Southern Alberta became known, among the Blood Tribe, as the “shrinking reserve.” As early as 1888, the tribe expressed its concern to Ottawa. In 1971, a Blood Tribe researcher confirmed it had been shortchanged. In 1980, the tribe sued the federal government.
The Blood Tribe argued that Alberta’s six-year time limits shouldn’t apply, asserting that it could not legally enforce the land promise until the 1982 Constitution came into force. Section 35 of the Constitution protects existing aboriginal and treaty rights.
In 2019, the Blood Tribe won at Federal Court, which called the federal government’s behaviour unconscionable. Before the court could hold a hearing on what damages should be assessed, the Federal Court of Appeal threw out that ruling, saying the six-year time limit applied.
The Supreme Court agreed with the appeal court – up to a point. It said treaty rights were enforceable obligations even before the 1982 Constitution and the time limits had run out. It left open, however, an entirely new question: whether such time limits involving treaty promises are unconstitutional. (It declined to address the issue because the Blood Tribe had not raised it.)
But it said the lower courts missed the opportunity to make a declaration, which it defined as an authoritative statement on a legal state of affairs or a legal relationship.
Ron Maurice, a lawyer representing the Federation of Sovereign Indigenous Nations, an intervenor in the case, said he is concerned about loss of access to the courts.
“It would be cold comfort to First Nations to hear that their rights are protected by the Constitution, but they cannot seek recourse to the courts or seek damages for a breach of a treaty right because the limitation periods tolled long before these rights were entrenched in the Constitution in 1982.”
Kent Roach, a law professor at the University of Toronto, said the declaration is “very helpful” because “it makes clear, regardless of limitation period, that the Blood Tribe should receive at least 162.5 squares miles of additional land or its equivalent hopefully determined by good faith negotiations.”
Prof. Wilkins said Indigenous groups may try to challenge the constitutionality of applying statutory time limits to treaty claims in other cases.
Sean Fine