Date: 20220210  
Docket: A-329-19  
Citation: 2022 FCA 20  
CORAM:  
BOIVIN J.A.  
RENNIE J.A.  
WOODS J.A.  
BETWEEN:  
HER MAJESTY THE QUEEN  
and  
Appellant  
JIM SHOT BOTH SIDES AND ROY FOX,  
CHARLES FOX, STEVEN FOX,  
THERESA FOX,  
LESTER TAILFEATHERS,  
GILBERT EAGLE BEAR,  
PHILLIP MISTAKEN CHIEF,  
PETE STANDING ALONE,  
ROSE YELLOW FEET,  
RUFUS GOODSTRIKER, AND  
LESLIE HEALY,  
COUNCILLORS OF THE BLOOD BAND,  
FOR THEMSELVES AND ON BEHALF O  
F THE INDIANS OF BLOOD BAND  
RESERVE NUMBER 148; AND THE  
BLOOD RESERVE NUMBER 148  
Respondents  
Heard by online video conference hosted by the Registry on April 13 and 14, 2021.  
Judgment delivered at Ottawa, Ontario, on February 10, 2022.  
Page: 2  
REASONS FOR JUDGMENT BY:  
CONCURRED IN BY:  
RENNIE J.A.  
BOIVIN J.A.  
WOODS J.A.  
Date: 20220210  
Docket: A-329-19  
Citation: 2022 FCA 20  
CORAM:  
BOIVIN J.A.  
RENNIE J.A.  
WOODS J.A.  
BETWEEN:  
HER MAJESTY THE QUEEN  
and  
Appellant  
JIM SHOT BOTH SIDES AND ROY FOX,  
CHARLES FOX, STEVEN FOX,  
THERESA FOX,  
LESTER TAILFEATHERS,  
GILBERT EAGLE BEAR,  
PHILLIP MISTAKEN CHIEF,  
PETE STANDING ALONE,  
ROSE YELLOW FEET,  
RUFUS GOODSTRIKER, AND  
LESLIE HEALY,  
COUNCILLORS OF THE BLOOD BAND,  
FOR THEMSELVES AND ON BEHALF O  
F THE INDIANS OF BLOOD BAND  
RESERVE NUMBER 148; AND THE  
BLOOD RESERVE NUMBER 148  
Respondents  
REASONS FOR JUDGMENT  
En  
Para.  
1
TABLE OF CONTENTS  
Blank/En blanc  
I.  
Introduction  
Overview  
1
The historical context  
Preliminary issue  
20  
37  
II.  
Treaties and the act of state doctrine  
Supreme Court of Canada decisions  
Jurisprudence prevailing on the expiry of the limitation period  
Decisions relied on by the Federal Court  
(1) R. v. Agawa  
60  
66  
71  
79  
80  
(2) Francis v. The Queen  
87  
(3) Vajesingji  
89  
(4) Hoani  
92  
III.  
Whether the terms of Treaty 7 were enforceable at common law  
Overview  
98  
98  
Treaty rights and Aboriginal rights  
Governing law  
106  
112  
116  
166  
176  
183  
191  
200  
210  
213  
218  
225  
230  
Jurisprudence prior to 1982  
Post section 35 jurisprudence  
Academic commentary  
Statutory authority to sue  
The political trust doctrine  
IV.  
V.  
Section 35(1) of the Constitution Act, 1982  
Section 35 of the Constitution Act and limitations legislation  
Supreme Court of Canada guidance  
Application of Lameman and Wewaykum in other courts  
Discretion to waive  
VI.  
Conclusion  
Page: 1  
RENNIE J.A.  
Introduction  
Overview  
[1]  
This appeal raises the single question whether the terms of Treaty 7 were enforceable in a  
Canadian court prior to the coming into force of section 35 of the Constitution Act, 1982,  
Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Constitution Act, 1982]. The entitlement,  
or not, of the Blood Tribe to 162.5 square miles of land in south-western Alberta pivots on the  
answer to this question.  
[2]  
The Blackfoot Confederacy and the Crown executed Treaty 7 on September 22, 1877.  
The Treaty established Blood Tribe Reserve No. 148. Encompassing 547.5 square miles, it is the  
largest reserve in Canada and home of the Kainai, or Blood Tribe.  
[3]  
Treaty 7 established the size of the reserve through a formula promising “one square mile  
for each family of five persons, or in that proportion for larger and smaller families” (Treaty and  
Supplementary Treaty 7, September 22 and December 4, 1877, at p. 4, Appendix D of the  
Decision under appeal, 2019 FC 789, per Zinn J.). The Blood Tribe has long claimed that the  
size of the reserve did not accord with that promised by the Treaty and, in 1980, commenced an  
action in the Federal Court. The statement of claim asserted that in establishing a reserve less  
than that provided for by the Treaty, Canada breached its obligations both under the terms of the  
Treaty and as a fiduciary. The Blood Tribe sought declarations to that effect, an order directing  
   
Page: 2  
that Canada procure lands from the province of Alberta for addition to the Reserve and monetary  
compensation for lost use, mineral royalties and rents since 1877.  
[4]  
For decades the action for the breach of treaty land entitlement (the TLE claim) sat in  
abeyance. What transpired during the 40 years before the 1980 action came to trial in the Federal  
Court in 2019 is not pertinent to the disposition of this appeal; it does, however, provide  
necessary context and will be discussed later in these reasons.  
[5]  
The Federal Court found that Canada was in breach of its Treaty commitment. The size  
of the reserve was understated by 162.5 square miles.  
[6]  
The Federal Court also found that the breach of the treaty land entitlement was  
discoverable as early as 1971. It rejected all allegations of concealment, lulling or deception on  
the part of Canada, finding that they were not established in the evidence. In the result, the TLE  
claim was barred by paragraphs 5(1)(e) and (g) of The Limitation of Actions Act, R.S.A. 1970, c.  
209 [The Limitation of Actions Act, 1970] and subsection 39(1) of the Federal Courts Act, R.S.C.  
1985, c. F-7. Combined, these provisions required the Blood Tribe to bring its claim within  
6 years of its discoverability date. As the claim was discoverable in 1971 and the action not  
commenced until 1980, it was barred by the prescription period.  
[7]  
The judge also held, however, that an action for breach of a treaty commitment could not  
be pursued in a Canadian court prior to 1982. Relying on R. v. Sundown, [1999] 1 S.C.R. 393,  
[1999] 2 C.N.L.R. 289 at para. 24 and First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58,  
Page: 3  
[2017] 2 S.C.R. 576 [First Nation of Nacho Nyak Dun v. Yukon] at para. 37, the judge reasoned  
that as treaties are not contracts and as the 1980 action was pled in contract, no cause of action  
existed by which the Blood Tribe could have enforced the Treaty commitment.  
[8]  
After reviewing decisions of the Judicial Committee of the Privy Council [JCPC] in 1899  
(Secretary of State for India v. Sahaba, [1859] U.K.P.C. 18) and 1941 (Hoani Te Heuheu Tukino  
v. Aotea District Maori Land Board, 1941 A.C. 308), the judge adopted the act of state doctrine,  
a principle of international law that provides that unless incorporated into a domestic law which  
confers a right of action, treaties are not enforceable in national courts. The judge reasoned that  
“[t]here is nothing in the Indian Act permitting a First Nation to bring an action to enforce the  
TLE under a Treaty” (Reasons at para. 500). As Treaty 7 was not incorporated into Canadian  
law, it was not enforceable in Canadian courts.  
[9]  
In the judge’s opinion, this changed on April 17, 1982, with the advent of section 35 of  
the Constitution Act, 1982. Section 35 created a right to sue: “Canada is the one who created the  
new cause of action when it enshrined existing treaty rights into the Canadian constitution”  
(Reasons at para. 475). Therefore, for the purposes of the Alberta Limitation of Actions Act,  
1970, time only began to run in 1982. In effect, the judge found that the Blood Tribe had  
commenced an action before it had a cause of action.  
[10] The Attorney General appeals, contending that a cause of action for breach of a treaty  
right existed at common law prior to 1982, and that the judge misunderstood the law in this  
regard. The Attorney General contends that the judge erred in construing the Treaty as an  
Page: 4  
international agreement and relying on the act of state doctrine to require that Treaty 7 be ratified  
by Parliament to be enforceable. Finally, the Attorney General contends that the judge  
misunderstood the effect of section 35, arguing that section 35 did not create a new cause of  
action, but gave constitutional protection to existing treaty rights.  
[11] The response of the Blood Tribe, at the highest level, is the judge made no error. Treaties  
did not create enforceable obligations. Like international treaties, they were unenforceable in the  
absence of legislative ratification. Treaties were simply political commitments dependent on the  
good grace and will of the Sovereign to respect as it chose. The Blood Tribe had no recourse or  
remedy for the breach of its treaty until 1982 when section 35 came into force. The Blood Tribe  
also relies on the political trust doctrine, a concept in the jurisprudence which holds that  
Aboriginal rights were not justiciable.  
[12] I have concluded that there were reversible errors in the reasons given by the Federal  
Court and that the appeal should be allowed. I reach this conclusion for three reasons.  
[13] First, the reasons are not consistent with the guidance of the Supreme Court of Canada.  
The Supreme Court has rejected the characterization of treaties as international agreements, as  
well as the application of international law principles to Canadian law. The Federal Court erred  
in characterizing Treaty 7 as if it were an international treaty and applying the act of state  
doctrine to conclude that its terms were unenforceable in a Canadian court. It was only by  
ignoring the governing jurisprudence that holds that treaties are enforceable agreements under  
Page: 5  
Canadian law that the judge was able to open the door to the act of state doctrine, a principle of  
public international law.  
[14] Second, there is an unbroken line of decisions over 120 years recognizing the  
enforceability of the commitments made in the numbered treaties. This jurisprudence has  
consistently taught that the numbered treaties created binding obligations, both legal and moral,  
on the Crown. Their terms were enforceable in Canadian courts because a foundational, robust  
legal principle compelled compliance the honour of the Crown. The conclusion of the Federal  
Court renders that principle empty and hollow.  
[15] The Supreme Court, indeed all courts, have eschewed pigeon-holing treaties and the  
breach of the commitments made therein, into a particular cause of action. Indeed, there are two  
unifying themes across a century of jurisprudence: the first is that the treaties created binding  
legal obligations, and the second is the studied indifference or agnosticism of the courts to the  
form in which, or the manner by which, a breach of a treaty commitment is framed or pled.  
[16] The question before the Federal Court was not whether the treaties were contracts it is  
clear that they are not rather the question before the Court was whether a court, having found  
that the land entitlement term of Treaty 7 had been breached, could have provided a remedy. The  
evolution in the language used to describe the nature of treaty obligations or the means of their  
enforcement; whether through declaratory actions, breach of contract, breach of treaty or breach  
of a constitutional obligation, does not change the question of whether a cause of action exists.  
Page: 6  
While the legal characterization of the treaties has changed, the readiness of the courts to provide  
a remedy has not.  
[17] Third, the judge misunderstood the effect of section 35 in relation to treaties. Section 35  
did not create new treaty rights the Supreme Court has settled that question rather, section 35  
gave constitutional protection to existing treaty rights. The inquiry that ought to have been  
undertaken by the Federal Court was to determine whether, as of the eve of the expiry of the  
limitation period, a Canadian court would have provided a remedy at common law for breach of  
the TLE term. As I will explain, the reasoning of the Federal Court with respect to section 35  
also circumvents and nullifies unequivocal jurisprudence of the Supreme Court with respect to  
limitations legislation and section 35.  
[18] Much of the argument before this Court failed to distinguish between Aboriginal rights  
and treaty rights. Treaty rights and Aboriginal rights are not the same; they differ in provenance  
and scope, and, importantly for the disposition of the issue in this appeal, when they first came to  
be recognized in Canadian courts. Any conclusion as to whether a treaty right was enforceable at  
common law as opposed to whether an Aboriginal right was enforceable at common law must  
proceed on an understanding of the distinction, prior to 1982, between the two. The Federal  
Court erred in conflating the two.  
[19] The answer to the question as to the enforceability or not of Treaty 7 lies much closer to  
home than an 1859 decision of the JCPC concerning a dispute under an international treaty  
between Britain and the Raja of Tanjore, then an independent, sovereign state. It is not necessary  
Page: 7  
to look so far afield in circumstances where Canadian courts have considered the question that  
was before the Federal Court. This jurisprudence, rooted in the common law, the Canadian  
constitutional framework and now reoriented to the north star of reconciliation, supplies the  
answer to the question raised in this appeal.  
The historical context  
[20] In the ordinary course, I would not trace the procedural history of a case where the issue  
with which the Court is seized is a question of law. Here, however, an understanding of how the  
issues between Canada and the Blood Tribe came before the Federal Court provides context and  
is pertinent to the over-arching objective of reconciliation.  
[21] In 1882, five years after execution of the Treaty, surveyors set the boundaries of the  
Blood Reserve. The survey described the Blood Reserve as an area of roughly 650 square miles  
in south-western Alberta, extending north from an east-west line 9 miles north of the Canada-US  
border. Also in 1882, the Canadian government, by Order in Council, granted two grazing leases  
on lands south of the reserve. The northern boundaries of the grazing leases extended 3 miles  
north of the southern boundary of the reserve lands described in the 1882 survey, overlapping the  
Blood Tribe’s lands (Reasons at para. 193; see also Appendix G).  
[22] The discrepancy in the boundaries between the 1882 survey of Blood Tribe lands and the  
grazing leases was quickly recognized by Canadian officials. Although the Surveyor General  
advised the leases would have to be amended to avoid encroaching on the Blood Tribe lands, the  
Lieutenant Governor of the North-West Territories, Edgar Dewdney, instead instructed John  
 
Page: 8  
Nelson, the surveyor who conducted the 1882 survey, to change the boundaries of the Blood  
Reserve. The terms of Treaty 7 provided that the boundaries could be revised by agreement of  
the Blood Tribe and Canada, and the Blood Tribe was asked to agree to the new boundary.  
[23] In 1883 the new boundary agreement was signed by members of the Blood Tribe and the  
Lieutenant Governor. It defined the southern boundary of the reserve by a latitudinal description,  
49°12’16”. Under the agreement, the southern boundary of the reserve was moved north of the  
boundaries of the grazing leases, a distance of approximately 5-6 miles. The southern boundary  
of the reserve was now 14-15 miles north of the international boundary and the overlap with the  
leases was eliminated. This change in the southern boundary reduced the size of the Blood  
Reserve from 650 square miles to its current size of 547.5 square miles.  
[24] Five years later, in 1888, members of the Blood Tribe, including its Chief, Red Crow,  
met with officials of the Indian Department. The Tribe members expressed their view that the  
size of the reserve was not as large as they had thought it would be when they signed Treaty 7.  
They also expressed uncertainty and confusion as to the precise location of the southern  
boundary.  
[25] As a result of these discussions, John Nelson, along with Red Crow and other members  
of the Tribe, travelled to the southern boundary of the Blood Reserve as described in the 1883  
agreement. Nelson showed Red Crow and other members of the Blood Tribe the location of the  
new southern boundary. This was the first time that the members of the Tribe had seen the  
location of the new boundary. Nelson placed iron posts along the southern boundary of the Blood  
Page: 9  
Reserve, from the south-east corner to south-west corner. In his report of the visit, Nelson  
recorded that “Red Crow was asked if he was satisfied, and he answered in the affirmative.”  
[26] Nearly a century passed.  
[27] On August 5, 1969, Leroy Little Bear, a Blackfoot researcher, presented the Blood Tribe  
Council a report on the 1882 and 1883 surveys. The report detailed the differences between the  
1882 and 1883 surveys and the reduction in the size of the reserve. The report was made  
available to all members of the Blood Tribe on November 4, 1969.  
[28] Leroy Little Bear then travelled to Ottawa in August 1971 to gather information from the  
Department of Indian and Northern Affairs as to the total number of people in the Blood Tribe  
for the years 1879 to 1884. The Department responded within a few days, providing Little Bear  
information extracted from the yearly annuity payments made to the members of the Tribe for  
the years 1881 and 1882. Based on this information, Little Bear confirmed the discrepancy  
between the size of the reserve owed under the original TLE calculation and existing reserve  
boundaries.  
[29] On February 27, 1976, the Blood Tribe tabled its position that the Treaty had been  
breached with the Minister of Indian Affairs. In addition to the TLE claim, the Tribe submitted  
what came to be known as “the Big Claim”, an entitlement to the lands extending south to the  
US border, west to include Waterton National Park and north to the confluence of the Belly and  
Waterton Rivers. Two years later, on June 20, 1978, the Minister rejected both claims.  
Page: 10  
[30] Having been unsuccessful in their negotiations with the Minister, the Blood Tribe  
commenced an action in the Federal Court on January 10, 1980.  
[31] The statement of claim alleged breaches of Canada’s fiduciary duty arising from the 1883  
survey, fraudulent concealment, and negligence. Importantly, it sought a declaration and  
damages for breach of contract arising from the failure to fulfill the treaty land entitlement (TLE)  
according to the formulae prescribed by section 7 of Treaty 7:  
In the alternative, the Plaintiffs claim that the said Treaty Number 7 and the said  
amendment to Treaty Number 7 entered into on or about the 2nd day of July, A.D.  
1883, constitute contracts between the Blood Band and the Defendant. The  
Plaintiffs claim that the Defendant, its predecessors in title and agents and/or  
servants for the time being have committed and continue to commit breaches of  
the said contracts in that they failed to accurately calculate the size of the said  
Reserve Number 148 as per the said contract in that the size of the said Reserve  
148 did not correspond to previously existing population figures as shown in the  
1881 and 1882 Treaty pay lists and was not substantiated by an official census or  
other accounting taken at the time of the execution of the said amended Treaty or  
at the time of the 1883 survey.  
[32] With the agreement of both the Blood Tribe and Canada, the Federal Court action was  
put into abeyance pending an assessment under the Specific Claims Policy of the Department of  
Indian Affairs and Northern Development. Given the glacial speed with which the Specific  
Claim was being addressed by the Department, on August 7, 1996 the Blood Tribe moved to  
reactivate the Federal Court action, confirming that the action would continue at the same time  
the Blood Tribe advanced the TLE claim under the Specific Claims Policy.  
[33] Three years later, on February 24, 1999, the Blood Tribe amended the 1980 statement of  
claim to include section 35 of the Constitution Act, 1982. The amendment read in part as follows:  
Page: 11  
“[t]he members of the Blood Tribe have Aboriginal and Treaty rights which are constitutionally  
protected by section 35 of the Constitution Act, 1982and, “Treaty Number 7 was made between  
the Blood Tribe and the Defendant as a sacred peace agreement between two Nations.”  
[34] In November 2003, the TLE claim was rejected under the Specific Claims Policy on the  
basis that Canada had no outstanding legal obligation. The Blood Tribe then requested that the  
Indian Claims Commission (ICC) conduct an inquiry into the claims advanced in the Federal  
Court action. The ICC issued its recommendations to the Minister on March 30, 2007; that the  
Big Claim not be accepted, and, secondly, that as the effect of the 1883 boundary change was  
remove lands from a reserve, a surrender was required. It recommended that the Minister  
negotiate a resolution.  
[35] Canada declined to negotiate, and the action proceeded to trial.  
[36] The case-managed action was divided into three phases. Phase I was heard on the Blood  
Reserve in May 2016 for the purpose of receiving oral history evidence from members of the  
Blood Tribe. Phase II, dealing with liability, fact and expert witness evidence, was held at the  
Federal Court in Calgary, 2018. Phase III was to address remedy.  
Preliminary issue  
[37] Well prior to the hearing of this appeal, the Attorney General filed a motion for leave to  
file a reply memorandum. The motion was prompted by what the Attorney General asserted was  
an attempt by the Blood Tribe to raise new issues that were not considered by the trial judge and  
 
Page: 12  
to reverse the judgment of the Federal Court with respect to separate and legally distinct issues  
(and in respect of which the Blood Tribe was unsuccessful) from those raised by the notice of  
appeal. The Attorney General asserts that the Blood Tribe is recasting its case, putting it on a  
different basis than it did at trial and that a notice of cross-appeal was required.  
[38] In response, the Blood Tribe contends that no cross-appeal was required, as it does not  
seek a different disposition or judgment than that under appeal. It argues that a party may offer  
any reasons in support of the judgment under appeal (Kligman v. M.N.R. (C.A.), 2004 FCA 152,  
[2004] 4 F.C.R. 477) and may provide “a new angle” on the existing issues (Smith v. St. Albert  
(City), 2014 ABCA 76, 370 D.L.R. (4th) 514 at para. 18). It points to portions of the trial record  
that allude to the arguments which the Blood Tribe now further develops in its memorandum,  
and says that it is offering additional reasons why the judgment should be maintained. The Blood  
Tribe states that its arguments are “closely related” to the issue on appeal which is whether a  
remedy for breach of a treaty existed prior to 1982. Its defence to the limitation period has not  
changed, namely as no cause of action existed at common law, the prescription period did not  
run. Its position, simply put, is that “treaties were not actionable” (Blood Tribe’s reply  
memorandum on Attorney General’s motion for leave, at paras. 21, 30).  
[39] This motion raises both procedural and substantive considerations.  
[40] A notice of cross-appeal must be filed when a different disposition of the decision under  
appeal is sought (Miller Thomson LLP v. Hilton Worldwide Holding LLP, 2019 FCA 156  
[Hilton]). As I will explain, the arguments that the Blood Tribe advance are alternative  
Page: 13  
arguments. A notice of cross-appeal is required “where the alternative argument is made in  
support not of the judgment appealed from but of a claim for a different judgment” (Hilton at  
para. 12), or, where the alternative argument, or the new angle would result in a different  
judgment, a notice of cross-appeal is required. The general rule is that the Court will not hear a  
ground of appeal that was not raised in the notice of appeal or cross-appeal. This ensures that the  
parties know at an early stage of the appeal what is in issue and can make legal, tactical and  
policy decisions accordingly.  
[41] A new issue on appeal is one that is factually and legally distinct from those raised at trial  
(Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 [Quan]). The test as to whether it should be  
entertained is stringent and the onus is on the party seeking to raise the issue to establish that the  
court can hear the issue without prejudice (Guidon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3  
at paras. 22-23). The discretion is to be exercised sparingly and is an exception to the general  
rule that the Court will not hear grounds of appeal that were not raised in the notice of appeal or  
cross-appeal.  
[42] The Federal Court judge, in thoughtful and thorough reasons, held that limitation periods  
apply to claims for breach of treaty. In a separate section of the reasons for judgment, entitled  
“Application of Provincial Limitation Acts to Treaty and Aboriginal Rights” he concluded, “I  
reject the submission of the Blood Tribe that provincial limitations legislation can have no  
application to the claims in this action …” (Reasons at para. 392). I note, parenthetically, that the  
provincial limitation period applies by reason of section 39 of the Federal Courts Act.  
Page: 14  
[43] Then, after an exhaustive and detailed review of the evidence, the judge concluded that  
the Big Claim was discoverable or discovered by 1890, the 1882 reserve claim by 1969 and the  
TLE claim by 1971. He found that the assertions of lulling, concealment or abuse of process  
where not made out on the evidence. He then considered, and rejected, the argument that he  
could, on the basis of Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC  
14, [2013] 1 S.C.R. 623 [Manitoba Metis] and in furtherance of the objective of reconciliation,  
waive the limitation period. Consequently, paras. 2 and 3 of the judgment read:  
2. Canada, having provided the Blood Tribe with a Reserve of 547.5 square miles  
in area, is in breach of the Treaty Land Entitlement provisions of Treaty 7;  
3. All claims of the Blood Tribe, other than the Treaty Land Entitlement claim  
arising from Canada’s breach of Treaty 7, are time-barred by operation of The  
Limitation of Actions Act, RSA 1970, c 209, made applicable to this action by  
section 38 of the Federal Courts Act, RSC 1985 c F-7.  
[44] All claims were statute barred, subject only to the singular question whether an action for  
breach of treaty could be pursued in a Canadian court prior to 1982.  
[45] The Blood Tribe is advancing an alternative argument on a basis for upholding the  
judgment and, therefore, no notice of cross-appeal is required (Hilton at para. 12). What is  
engaged, however, is whether a new argument should be heard on appeal (Eli Lilly Canada Inc.  
v. Teva Canada Limited, 2018 FCA 53; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689).  
[46] I turn to the new issues and arguments said to be outside the scope of the appeal.  
Page: 15  
[47] The political trust doctrine was not advanced at trial and not considered by the Federal  
Court. It is a new argument and, as the Attorney General points out, the Blood Tribe makes no  
attempt to link the argument to the reasons of the Federal Court. The Attorney General contends,  
and I believe is right to do so, that the assertion of a political rights doctrine is an attempt to  
argue that the judge reached the right conclusion, but on a basis that the judge did not consider.  
The Attorney General says that he has not had an opportunity to state his position on the issue.  
[48] The second argument objected to is whether the Indian Act is a complete code, which  
ousts the common law right of Aboriginal Canadians to sue.  
[49] The argument made at trial and which found favour with the judge was that as Treaty 7  
had not been incorporated into legislation, and, as there was nothing in the Indian Act that  
permitted the Blood Tribe to sue on the treaty, the terms of Treaty 7 were unenforceable. This  
argument has been recast by the Blood Tribe to say that the Indian Act is a complete code which  
displaced all common law right of action. It is made on the necessary admission that there was,  
in fact, a right to sue at common law otherwise there would be nothing to displace.  
[50] This is a new argument, one which would require much more than has been put before  
this Court to be considered the text, the context and purpose of the various provisions would  
have to be assessed as would the legislative history of the Indian Act and how it stood prior to  
1982. None of this was argued at trial and the argument is not developed in any way in this Court  
provisions of the Act are neither identified nor explained and there is no legislative history. It  
Page: 16  
would be impossible for a court to conduct the statutory interpretation analysis necessary to  
conclude that the Indian Act prohibited the right of Aboriginal Canadians to sue.  
[51] The Attorney General also objects to language in the Blood Tribe’s memorandum of fact  
and law which raises whether there were practical and legal obstacles that prevented it from  
bringing its claim. He contends that this is a covert attempt to challenge the judge’s factual  
findings with respect to discoverability.  
[52] The Blood Tribe denies that it seeks to reverse the findings with respect to  
discoverability. Paragraph 12 of the Blood Tribe’s memorandum in reply to the motion makes  
clear that the argument which underlies the Attorney General’s concerns is simply a reprise of  
the argument that there was no cause of action until 1982, relying again on Ravndahl v.  
Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181 [Ravndahl] and the judge’s reasons at pp. 499-  
501.  
[53] If successful, challenges to the discoverability and limitations findings, whether factual or  
legal, would fundamentally alter the scope of the appeal and the terms of the judgment itself. Put  
otherwise, these arguments, if successful, would have consequences for other factually and  
legally discrete elements of the reasons and would, of necessity, require the variation of other  
parts of the judgment of the Federal Court (Quan at para. 39).  
[54] A respondent cannot use its discretion to raise “any argument” in support of a decision  
challenged on appeal as justification to unwind other parts of the judgment in respect of which a  
Page: 17  
notice of cross-appeal ought to have been filed. In those circumstances, fairness requires that  
notice of that intention be signaled early in the form of notice of cross-appeal. Memoranda of  
fact and law on the cross-appeal would be exchanged and the legal and factual record before this  
Court would look much different than that currently before the Court.  
[55] The fourth argument pertains to the limitation period. At trial the Blood Tribe argued that  
the Court had a discretion to waive the limitation period, an argument rejected by the judge.  
While the Blood Tribe uses, in its memorandum, language which may suggest an attempt to  
undo the judge’s findings of fact on discoverability, paras. 41-42 of the reply memorandum,  
again, allay that concern. The Blood Tribe is simply re-arguing that Manitoba Metis allows a  
court to waive a limitation period. Again, while not expressed as such, the argument that the  
judge has a discretion to waive the limitation period is an alternative argument. It is only  
applicable if there is a cause of action.  
[56] I appreciate the concern that language in the Blood Tribe memorandum can be read as an  
impermissible effort to vary the judgment and to collaterally challenge findings of fact and  
determinations of law in respect of which a notice of cross-appeal ought to have been filed. This  
concern however, is put to rest when both the Blood Tribe’s memoranda on appeal and in reply  
to the motion are read. They leave no doubt that there is only one issue on appeal:  
Paragraph 1 of the Blood Tribe’s appeal memorandum states that the Trial Judge  
correctly understood and interpreted limitation periods in the Aboriginal context;  
Paragraph 5 of the memorandum, confirms that the issue on appeal is narrow:  
Page: 18  
[W]hether treaty land entitlements under treaties between Canada and  
Indigenous Tribes were civilly actionable for a claim of ‘breach of treaty’  
in Canadian courts before the advent of s. 35(1) of the Constitution Act,  
1982 on April 17, 1982. As the Trial Judge correctly held, they were not  
and therefore no statutory limitation period for a cause of action in breach  
of treaty under s. 35(1) could begin to run until 1982.  
Paragraph 4 of the memorandum reinforces that the appeal only concerns “the one  
claim which was allowed”;  
Paragraph 35 acknowledges that paragraph 5(1)(g) of the Alberta Limitation of  
Actions Act, 1970 applies and “would capture ‘breach of treaty’”;  
Paragraph 37 acknowledges the adverse finding of discoverability, but flags that  
this is of no consequence as there was no cause of action;  
Paragraph 106 its memorandum, in its claim for relief, simply asks that “the  
appeal be dismissed in its entirety”.  
[57] Turning to the Blood Tribe’s reply to the Crown motion to file a reply memorandum;  
Paragraph 22 states that “[t]he Respondents are not seeking to overturn any parts  
of the judgment under appeal and are not seeking a different disposition of the case”  
[Emphasis added]  
Paragraphs 21, 30 indicate that its defence to the limitations period, simply put, is  
that treaties are not actionable.  
Page: 19  
[58] In oral argument before this Court, counsel for the Blood Tribe did not stray outside the  
issues as framed by the notice of appeal or seek a different outcome other than the dismissal of  
the appeal.  
[59] I therefore conclude that the Blood Tribe’s memorandum is within the guardrails of the  
issues as framed by the notice of appeal. I would grant the Crown’s motion to file a reply, but  
only to the extent that it responds to the political trust issue. Whether breaches of treaty could not  
be pursued because they were non-justiciable, political issues is a legal question which bears  
directly on the question in issue and requires no further evidence or fact finding.  
Treaties and the act of state doctrine  
[60] The parties read the reasons of the Federal Court judge differently. They do not agree as  
to whether the judge, in fact, concluded that the historic treaties are international agreements.  
The Attorney General argues that it is the only reasonable inference to be drawn from the judge’s  
silence as to how treaties were to be characterized, his heavy reliance on international treaty  
cases and his application of the act of state doctrine. The Blood Tribe, for its part, notes that the  
judge recognized that the Supreme Court has consistently rejected the application of international  
law principles to the historic treaties.  
[61] Reading the reasons as a whole and having regard to the extensive reliance on  
international law cases to support the conclusion that treaties were not enforceable, my view is  
that the judge, in fact, concluded that the historic treaties were international treaties. That said, I  
 
Page: 20  
agree that the reasons are ambiguous, but it is an ambiguity that need not be resolved. It is a  
debate of no consequence.  
[62] Even if the judge stopped short of finding that the treaties were international agreements,  
he erred in deciding the question of whether they were enforceable through the lens of public  
international law principles and applying the act of state doctrine. The Federal Court decision  
pivots on the conclusion that the historical treaties were either international treaties or analogous  
to international treaties and, as such, were unenforceable unless incorporated into Canadian law.  
This conclusion is contrary to established Supreme Court guidance on the legal characterization  
of treaties and the rejection of the application of international law principles into Canadian law.  
[63] The judge supported his conclusion by noting that the Supreme Court of Canada adopted  
the act of state doctrine in Francis v. The Queen, [1956] S.C.R. 618, 1956 79 (SCC) at p.  
621 [Francis]. There, the Supreme Court stated that “it is clear that in Canada such rights and  
privileges as were here advanced of subjects of a contracting party to a treaty are enforceable by  
the Courts only where the treaty has been implemented or sanctioned by legislation” (Reasons at  
para. 497). The judge also observed that the principle expressed in Francis was restated in the  
Ontario Court of Appeal decision of R. v. Agawa (1988), 53 D.L.R. (4th) 101, 65 O.R. (2d) 505  
at 509 [Agawa] (Reasons at para. 498). There, Blair J.A. wrote:  
Indian treaties are, however, similar in one respect to Canada's international  
treaties. They are not self-executing and can acquire the force of law in Canada  
only to the extent that they are protected by the Constitution or by statute.  
[Emphasis added by Federal Court Judge]  
Page: 21  
[64] I will address these cases later in these reasons, but it is sufficient to say at this point that  
these cases do not support the conclusion reached by the Federal Court.  
[65] The judge did much more than look to international law by analogy, he adopted  
substantive principles of international law. To be precise, the judge applied the act of state  
doctrine, a substantive component of international law to Treaty 7. The doctrine holds that unless  
domestic legislation provides a right of recourse, municipal or domestic courts do not have the  
competence to consider treaties between two foreign and sovereign countries. This conclusion  
comes as a surprise, given the extent to which Canadian courts recognized the enforceability of  
treaties since Confederation and the consistent and unequivocal jurisprudence of the Supreme  
Court that treaties are not international agreements.  
Supreme Court of Canada decisions  
[66] In the 1985 decision of Simon v. The Queen, [1985] 2 S.C.R. 387, 1985 11 (SCC)  
at para. 33 [Simon], the Court considered a pre-Confederation friendship treaty and concluded:  
In considering the impact of subsequent hostilities on the peace Treaty of 1752,  
the parties looked to international law on treaty termination. While it may be  
helpful in some instances to analogize the principles of international treaty law to  
Indian treaties, these principles are not determinative. An Indian treaty is unique;  
it is an agreement sui generis which is neither created nor terminated according to  
the rules of international law. R. v. White and Bob (1964), 50 D.L.R. (2d)  
613 (B.C.C.A.), at pp. 617-18, aff'd [1965] S.C.R. vi, 52 D.L.R. (2d) 481; Francis  
v. The Queen, [1956] S.C.R. 618, at p. 631; Pawis v. The Queen, [1980] 2 F.C.  
18, (1979), 102 D.L.R. (3d) 602, at p. 607.  
[67] A year later, in R. v. Horse, [1988] 1 S.C.R. 187, 1988 91 (SCC) [Horse] at paras.  
35-37, the Court reiterated the conclusion in Simon. The question in Horse was whether a pre-  
 
Page: 22  
Confederation friendship agreement was a formal treaty for the purposes of the Indian Act. The  
Court rejected the proposition that it should have regard to principles of international law in  
deciding that question.  
[68] In R. v. Sioui, [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427 [Sioui], the Supreme Court  
again considered whether a pre-Confederation treaty was a treaty within the meaning of section  
88 of the Indian Act. The appellant argued that the British Crown could not validly enter a treaty  
with the Hurons as it was not sovereign in Canada in 1760. The appellant based this argument on  
international law, as stated by eighteenth and nineteenth century jurists, which required that a  
state should be sovereign in a territory before it could alienate that territory.  
[69] The Court rejected the argument, noting that it was not even necessary to consider the  
substance of the point of international law. It noted that at the time with which the Court was  
concerned “relations with Indian tribes fell somewhere between the kind of relations conducted  
between sovereign states and the relations that such states had with their own citizens.” In  
concluding that the 1760 treaty between Governor Murray and the Hurons was a treaty within  
the meaning of the Indian Act, the Court noted the Simon decision was clear that “an Indian  
treaty is an agreement sui generis which is neither created nor terminated according to the rules  
of international law” (Sioui at p. 1038).  
[70] I will return to Sioui later in these reasons when I consider whether the numbered treaties  
were enforceable, but pause here to note that the Supreme Court considered a treaty entered into  
in 1760 to create binding legal obligations. Consequently, the treaty was given legal effect and  
Page: 23  
the right to cut wood, fish and hunt was protected from provincial regulatory restrictions. This  
raises the obvious question as to why a treaty executed 117 years later did not create binding  
obligations.  
Jurisprudence prevailing on the expiry of the limitation period  
[71] The trilogy of Supreme Court cases in the 1990’s, Simon, Horse and Sioui, did not  
change the law. They are consistent with the jurisprudence governing the legal characterization  
of treaties prevailing at the expiry of the limitation period in 1978.  
[72] In Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313, 34 D.L.R.  
(3d) 145 [Calder], Hall J., dissenting in the result but not on this point, discussed, and rejected,  
the application of the act of state doctrine as a bar to recognizing Aboriginal title (at pp. 404-  
406). The act of state doctrine only applies where the sovereign has acquired land from another  
sovereign, which can only be done through a treaty of cession.  
[73] In Pawis v. Canada, [1980] 2 F.C. 18, 102 D.L.R. (3d) 602 (T.D.) [Pawis] at para. 9,  
Marceau J. wrote:  
(i) It is obvious that the Lake-Huron Treaty, like all Indian treaties, was not a  
treaty in the international law sense. The Ojibways did not then constitute an  
“independent power”, they were subjects of the Queen. Although very special in  
nature and difficult to precisely define, the Treaty has to be taken as an agreement  
entered into by the Sovereign and a group of her subjects with the intention to  
create special legal relations between them. The promises made therein by  
Robinson on behalf of Her Majesty and the “principal men of the Ojibewa[y]  
Indians” were undoubtedly designed and intended to have effect in a legal sense  
and a legal context. The agreement can therefore be said to be tantamount to a  
 
Page: 24  
contract, and it may be admitted that a breach of the promises contained therein  
may give rise to an action in the nature of an action for breach of contract.  
[Emphasis added]  
[74] So too, in Hay River (Town) v. Canada (1979), [1980] 1 F.C. 262, 101 D.L.R. (3d) 184  
[Hay River] at para. 5, was the proposition that a treaty was an international agreement rejected:  
It is not necessary, for this purpose, to attempt a comprehensive definition of the  
legal nature of Treaty No. 8. Clearly, it is not a concurrent executive act of two or  
more Sovereign States. Neither, however, is it simply a contract between those  
who actually subscribed to it. It does impose and confer continuing obligations  
and rights on the successors of the Indians who entered into it, provided those  
successors are themselves Indians, as well as on Her Majesty in right of Canada.  
[75] On the eve of the enactment of the Constitution Act, 1982, the United Kingdom Court of  
Appeal considered whether the treaties were enforceable against the Crown in the United  
Kingdom. The Court of Appeal noted that, “although the relevant agreements with the Indian  
peoples are known as ‘treaties’, they are not treaties in the sense of public international law.  
They were not treaties between sovereign states, … ” (R. v. Secretary of State for Foreign and  
Commonwealth Affairs, 1982 WL 221742 (1982)).  
[76] In sum, there is no support in the case law on either side of the expiry of the limitation  
period for the proposition that the historic treaties engage the act of state doctrine and require  
incorporation into domestic law to be enforceable.  
Page: 25  
[77] I would add to this that the policy rationale that underlies the act of state doctrine as a  
principle of public international law is incompatible with the fundamental constructs of Canadian  
constitutional framework which establishes, through sections 96 and 101 of the Constitution Act,  
1867, the role of the judiciary in the Canadian federation.  
[78] The doctrine of act of state is premised on the view that national or domestic courts do  
not have all the information, evidence, or policy context necessary to decide international  
treaties, let alone the power of enforcing their decisions (Secretary of State for India v. Sahaba,  
[1859] UKPC 19 at 529; Cook v. Sprigg, [1899] A.C. 572 at p. 578). The judge, in adopting the  
act of state doctrine, necessarily accepted its underlying rationale; the Canadian judiciary is not  
competent to adjudicate disputes arising under the historic treaties. Importing the principle into  
Canadian law also begs the question as to which forum would be competent if domestic courts  
are not competent to adjudicate treaties.  
Decisions relied on by the Federal Court  
[79] Before leaving this point, I will address the four cases that the judge relied on in support  
of the view that the treaties were akin to international instruments and not enforceable unless  
incorporated by domestic legislation. Neither Agawa, nor Francis, Vajesingji and Hoani Te  
Heuheu Tukino v. Aotea District Maori Land Board, 1941 AC 308 (PC) [Hoani] support that  
conclusion.  
 
Page: 26  
(1)  
R. v. Agawa  
[80] As noted, the judge relied on Agawa at page 106 and the statement that Indian treaties are  
not self-executing and can acquire the force of law in Canada only to the extent that they are  
protected by the Constitution or by statute. In argument, the Blood Tribe points out that Agawa  
was cited with approval by the Supreme Court on three occasions: R. v. Sparrow, [1990] 1  
S.C.R. 1075, 70 D.L.R. (4th) 385 at p. 1091[Sparrow], 1107; R. v. Badger, [1996] 1 S.C.R. 771,  
133 D.L.R. (4th) 324 [Badger]; R. v. Nikal, [1996] 1 S.C.R. 1013, 133 D.L.R. (4th) 658.  
[81] Agawa merits a closer reading.  
[82] Agawa arose in the context of a regulatory prosecution under the Ontario Fishery  
Regulations, a delegated authority under the federal Fisheries Act. Section 88 of the Indian Act  
provided that all provincial laws of general application applied to Aboriginal treaties except to  
the extent that they were inconsistent with federal laws or the terms of treaties. The issue in  
Agawa, therefore, was whether the Ontario Fishery Regulations, made by Ontario under a  
delegated power, fell within section 88 and were provincial law and inconsistent with a right to  
fish granted by the Robinson-Huron Treaty of 1850.  
[83] The Court of Appeal determined that the Regulations prevailed, noting that, unless  
codified in legislation, “[i]n practical terms, … the only effective protection of Indian treaty  
rights until 1982 was provided by [section 88 of] the Indian Act, R.S.C. 1970, c. I-6 inserted  
in the Act in 1951 (S.C. 1951, c. 29, s. 87)(at p. 106).  
 
Page: 27  
[84] The broad sweep of the statement in Agawa attracted the attention of the Federal Court.  
However, when read in its context, it is simply a statement of an uncontroverted principle, that  
treaty rights were, prior to 1982, subject to legislative constraint or extinguished by Parliament  
but not by provincial legislatures.  
[85] Professor Grammond, (now Grammond J.), explains in Terms of Coexistence: Indigenous  
People and Canadian Law, 2013 (Thomson Reuters Canada Limited), at p. 307 that when a  
treaty contains provisions incompatible with existing federal legislation, it does not acquire legal  
force unless it is implemented or protected by legislation. Professor Grammond’s analysis of the  
interaction between treaty rights and legislation speaks precisely to factual and legal issue  
considered by the Ontario Court of Appeal in Agawa. A treaty right conflicted with legislation  
and at issue was which was to prevail the federal Fisheries Act or the right to fish accorded by  
the treaty. In the case of a conflict between a treaty and federal legislation, the federal legislation  
prevailed.  
[86] In sum, prior to 1982, unless incorporated into law, treaties could not displace or override  
federal legislation (Robert Mainville, An Overview of Aboriginal and Treaty Rights and  
Compensation for Their Breach (Saskatoon: Purich Publishing, 2001) at p. 52 [Mainville]). The  
judge inverted this principle and established a new one that a treaty was not enforceable in the  
absence of parliamentary ratification and in so doing erred.  
Page: 28  
(2)  
Francis v. The Queen  
[87] As mentioned, the judge relied on Francis to support the conclusion that the act of state  
doctrine applied.  
[88] The November 19, 1794 Jay Treaty was a pre-Confederation treaty between the United  
States of America and the United Kingdom (Francis at pp. 620-621, 629-630), and an issue arose  
whether Aboriginal Canadians could enforce or claim the protection of the Treaty. The Supreme  
Court held that they could not, as the treaty was an international treaty and had not been  
incorporated into a domestic law which provided recourse by the citizens of either Canada or the  
United States. Although in dissent on a different issue, Kellock J. observed (at p. 631), that the  
historic treaties (which would include Treaty 7) were not treaties like the Jay Treaty. The  
majority did not disagree with this statement, and the reasoning of the Court proceeds on that  
basis. The judge erred in considering Francis as authority for the proposition that Treaty 7 was  
not enforceable in Canadian courts.  
(3)  
Vajesingji  
[89] The judge relied on the decision of the JCPC in Nayak Vajesingji Joravarsingji and  
others v. The Secretary of State for India in Council, [1924] UKPC 51 (BAILII), (1924) L.R. 51  
Ind. App. 357 (P.C.) (Reasons at paras. 473-479) in support of the conclusion that Treaty 7 was  
not enforceable.  
   
Page: 29  
[90] Here, again, context is critical. The treaty in question was between two acknowledged  
sovereign states, India, and Scindia. It was a treaty between two “High Contracting Parties”  
whereby Scindia relinquished land in exchange for other lands. Citizens or subjects of the state  
of Scindia sued India, seeking a declaration of interest in the newly acquired lands. The JCPC  
rejected the claim, noting that until India acknowledged the claims or ownership interests of the  
subjects of the former state, it had no jurisdiction to consider the matter.  
[91] Vajesingji does not support the conclusion reached by the Federal Court. It arises in  
patently different factual and legal context. Further, as the JCPC stressed, the citizens of Scindia  
were not parties to the treaty (at p. 475). Here, in contrast, the Blood Tribe was party to Treaty 7.  
(4)  
Hoani  
[92] The judge placed considerable emphasis on the JCPC decision in Hoani, relying on it  
again for the proposition that treaty rights cannot be enforced in the absence of implementing  
legislation giving a domestic court jurisdiction to do so.  
[93] Care must be taken in the development of Canadian law when importing conclusions  
from decisions rendered in entirely different historical and legal contexts. The 1840 Treaty of  
Waitangi is the only treaty between the British Crown and the Maori Chiefs. It was a treaty of  
cession, executed before the British asserted sovereignty in New Zealand. Article 1 of the Treaty  
makes this clear:  
The Chiefs of the Confederation of the United Tribes of New Zealand and the  
separate and independent Chiefs who have not become members of the  
Confederation cede to Her Majesty the Queen of England absolutely and without  
 
Page: 30  
reservation all the rights and powers of Sovereignty which the said Confederation  
or Individual Chiefs respectively exercise or possess, or may be supposed to  
exercise or to possess over their respective Territories as the sole sovereigns  
thereof.  
[94] Consistent with the historical and legal characterization of the treaty as a treaty of  
cession, it required implementing legislation (The Treaty of Waitangi Act 1975: (1975 No. 114)  
(New Zealand) at p. 825).  
[95] Canadian history is different. Sovereignty had been asserted long before Treaty 7 was  
executed in 1877. The Royal Proclamation of 1763 itself notes that the “nation” and “tribes” are  
under British “Sovereignty, Protection and Dominion” (at para. 5), a fact reflected in the  
preamble to Treaty 7:  
And whereas the said Indians have been informed by Her Majesty's  
Commissioners that it is the desire of Her Majesty to open up for settlement, and  
such other purposes as to Her Majesty may seem meet, a tract of country,  
bounded and described as hereinafter mentioned, and to obtain the consent thereto  
of Her Indian subjects inhabiting the said tract, and to make a Treaty, and arrange  
with them, so that there may be peace and good will between them and Her  
Majesty, and between them and Her Majesty's other subjects; and that Her Indian  
people may know and feel assured of what allowance they are to count upon and  
receive from Her Majesty's bounty and benevolence.  
[96] The differences between the facts of Hoani and Canadian constitutional history are many  
and stark. Canadian courts have never suggested that they had no jurisdiction to consider treaties  
on the basis that they were between independent sovereign countries, let alone on the basis that  
they had no jurisdiction to enforce their terms.  
Page: 31  
[97] As Professor Burrows points out, nation to nation development can take place within the  
construct of a single sovereign state. That has been the legal, historical, and constitutional  
experience of Canada in its relationship with indigenous Canadians (John Borrows and Leonard  
Rotman, The Sui Generis Nature of Aboriginal Rights, Alta. Law Review, Vol. 36(1), 1997, at  
pp. 23-25, 29-30, 44). A nation-to-nation relationship, one that recognizes elements of self-  
governance but within an existing constitutional framework, is markedly different than a  
relationship between two sovereign states.  
Whether the terms of Treaty 7 were enforceable at common law  
Overview  
[98] The conclusion of the Federal Court that no cause of action could be brought in respect of  
a breach of treaty right prior to 1982 is inconsistent with established jurisprudence and academic  
commentary. It is also inconsistent with the basic tenant underpinning all Aboriginal law in  
Canada the honour of the Crown. Neither the honour of the Crown nor the jurisprudence which  
holds treaties to create binding legal obligations are displaced simply by reason of the fact that  
the action was framed in contract.  
[99] By way of overview, three errors underlie the Federal Court’s conclusion.  
[100] First, Canadian jurisprudence recognizes the enforceability of treaty terms. Although the  
judge was correct to note the Supreme Court has said that treaties are not contracts, he erred in  
concluding that because they are not contracts they were not enforceable. Treaties are more than  
   
Page: 32  
contracts, not less. Treaties were entered into with the intention to create legal obligations and  
how that obligation is characterized is of no consequence to the question whether their terms are  
enforceable.  
[101] Second, the judge erred in discounting jurisprudence that established the enforceability of  
treaties on the basis that the treaty rights were used defensively and not on a positive basis to  
assert a treaty right. The categorization of cases into sword or shield is not helpful. There is no  
logical reason to conclude that the use of a treaty to defend conduct has no bearing on the  
question whether a treaty is enforceable, whereas an action to assert a treaty term, does. The  
Supreme Court recognized the analytical limitations of this approach in R. v. Desautel, 2021  
SCC 17, 456 D.L.R. (4th) 1 [Desautel] noting that criminal, regulatory and civil proceedings are  
all legitimate forums in which Aboriginal interests may be expressed (Desautel at paras. 89-90,  
92). The sword/shield paradigm masks the true inquiry, which is, whether this specific term of  
Treaty 7 would be given positive legal effect.  
[102] Third, as I noted at the outset, Aboriginal rights and treaty rights are not the same. While  
treaty rights are encompassed within the broader concept of Aboriginal rights and now have co-  
extensive constitutional protection, their provenance and scope are different. Any conclusion as  
to whether a treaty right was enforceable as opposed to whether an Aboriginal right was  
enforceable must proceed on an understanding of the distinction between the two. Prior to 1982,  
they were conceptually, historically and jurisprudentially different, and the fact that an action to  
enforce an Aboriginal right may not have been recognized prior to 1982 does not mean that a  
treaty right would suffer the same fate.  
Page: 33  
[103] Conflating or merging the two streams of law, one addressing Aboriginal rights, the other  
addressing treaty rights, is an error. This error is best reflected in reliance on cases such as R. v.  
Van der Peet, [1996] 2 S.C.R. 507, 1996 216 (SCC) [Van der Peet], which concerned  
Aboriginal rights, and transposing the reasoning in that case to a treaty case. In the same vein,  
the political trust doctrine, conceived and applied in the context of Aboriginal title cases, cannot  
be transplanted to treaty cases. I do not agree with the appellant that the specific obligation in  
Treaty 7 with which we are concerned is governed by the political trust doctrine.  
[104] Put more simply, prior to 1982, Aboriginal interests arose in a diversity of legal  
proceedings: actions to recognize and establish Aboriginal title, (as in Calder and Guerin v. The  
Queen, [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 [Guerin]); to exercise an Aboriginal right to  
hunt and fish, (as in Simon; Sioui; R. v. Moses, 13 D.L.R. (3d) 50, [1970] 3 O.R. 314; R. v.  
Taylor, 34 O.R. (2d) 360, 1981 CarswellOnt 641 [Taylor]); or to enforce a specific treaty term  
(as in The Province of Ontario v. The Dominion of Canada and the Province of Quebec (1895),  
25 S.C.R. 434, 1895 112 (SCC) [Annuities Case (SCC)], Henry v. R., 1905 CarswellNat  
19, 9 Ex. C.R. 417 [Henry], and Dreaver v. The King (1935), 5 CNLC 92 (Exch. Ct.) [Dreaver]).  
The failure to situate the issue before the Court in the context of the applicable jurisprudence led  
the Federal Court to reach two conclusions; one anomalous and the other remarkable.  
[105] The anomalous conclusion is that, if correct, inchoate Aboriginal rights, which were  
absorbed into the common law and existed prior to 1982, were enforceable (Desautel at paras.  
34, 68), but specific, tangible and quantifiable commitments memorialized in solemn, public  
agreement, were not. The remarkable conclusion is that, if correct, the honour of the Crown, the  
Page: 34  
motivating principle of jurisprudence and which compels the Crown to honour its commitments  
to Aboriginal Canadians are simply empty words.  
Treaty rights and Aboriginal rights  
[106] Treaty rights are different from Aboriginal rights (Desautel at paras. 34, 68; Van der Peet  
at paras. 27-29). In Badger, Sopinka J. observed that there was “no doubt that aboriginal and  
treaty rights differ in both origin and structure” (at para. 76). Aboriginal rights stem from the fact  
that Indigenous peoples were in Canada prior to colonialization. Aboriginal rights are pre-  
existing and evolving (Simon at paras. 18-24, 30; Sioui at pp. 1043-1045, 1054, and flow from  
the customs and traditions of native peoples. As Sopinka J. paraphrased from Judson J. in Calder  
(at p. 328), “they embody the right of native people to continue living as their forefathers lived.”  
[107] A treaty right, while held by Indigenous peoples, stems from an agreement between  
Aboriginal Canadians and the Crown. Sometimes treaties confirm or regulate a pre-existing  
Aboriginal right, such as a right to hunt and fish, sometimes they establish a reserve out of lands  
subject to Aboriginal title, or out of lands that are not subject to a title claim, and sometimes they  
create a new obligation.  
[108] Treaties “are analogous to contracts, albeit of a very solemn and special, public nature”  
(Badger at p. 76). A treaty right is grounded in its terms, as interpreted according to the  
principles described in Marshall. As Robert Mainville (now Mainville J.A., Que. C.A.) writes,  
“... they are very special contracts of a sui generis nature and they are governed by public law  
rules” and their terms “clearly bind the Crown” (Mainville at p. 35).  
 
Page: 35  
[109] Historically, claims to an Aboriginal right or interest in lands were not recognised,  
neither by courts nor government. Prior to 1982, an Aboriginal interest, whether grounded in the  
common law or in a treaty, was constrained to the extent that it was inconsistent with a statute  
which demonstrated a legislative intention to limit or extinguish the right. The point was made in  
Sparrow at p. 1098 where the Court adopted the reasoning of Mahoney J. in Baker Lake  
(Hamlet) v. Canada (Minister of Indian Affairs & Northern Development), [1980] 1 F.C. 518,  
107 D.L.R. (3d) at p. 551:  
Once a statute has been validly enacted, it must be given effect. If its necessary  
effect is to abridge or entirely abrogate a common law right, then that is the effect  
that the Courts must give it. That is as true of an aboriginal title as of any other  
common law right.  
[110] While I will elaborate on this later in these reasons, it is sufficient to observe at this point  
that prior 1951, treaty rights could be eroded by provincial and federal legislation and  
regulations, and between 1951 and 1982, by federal legislation. Consequently, pre-1982  
jurisprudence concerning Aboriginal title and non-treaty Aboriginal rights (which were not  
recognized until Guerin) and treaty rights (which could be eroded by legislation) is not predictive  
of how treaty violations such as the TLE claim before us would have been decided prior to 1982  
(Sparrow at pp. 1103-1105).  
[111] The question before this Court is whether a court would have given legal effect to Treaty  
7 on the eve of the expiry of the limitation period pursuant to the Alberta Limitations Act, 1970.  
To answer that question, a historical review of the jurisprudence is necessary. But the  
jurisprudence after 1982 is also informative. Looking through the rear-view mirror reveals our  
contemporary understanding of the law as it then existed. And what we see in the mirror is that a  
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treaty right in the nature of the TLE commitment in Treaty 7 would have been enforceable prior  
to 1982  
Governing law  
[112] At the time Treaty 7 was concluded in 1877, Canada had asserted de jure and de facto  
sovereignty over the lands in question (The Royal Charter for Incorporating the Hudson’s Bay  
Company: Granted by His Majesty the King Charles the Second, in the Twenty-Second Year of  
His Reign, A.D. 1670 (H.K. Causton, 1865); Convention between His Britannic Majesty and the  
United States of America, signed at London, October 20, 1818, at Article II; Constitution Act,  
1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5, s. 91(24) at p. 25  
and s. 146 at p. 42; Rupert’s Land Order; Treaty 7).  
[113] English common law was the governing law at the time and place that Treaty 7 was  
executed in 1877. The Northwest Territories Act, R.S.C. 1886, c. 50, s. 11 deemed the laws of  
England, including the common law, as it existed on July 15, 1870, to be in force in the  
Northwest Territories (which at the time included what is now the Province of Alberta). This was  
the date on which the Hudson’s Bay Company surrendered its lands to Canada. From that point  
forward, limitations of action legislation applied (Papaschase Indian Band (Descendants of) v.  
Canada (Attorney General), 2004 ABQB 655, [2004] 4 C.N.L.R. 110 at para. 112). With the  
creation of the province of Alberta in 1905, the common law as it had existed in the Northwest  
Territories continued (Alberta Act, 1905, 4-5 Edw. VII, c. 3, s. 16).  
 
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[114] The ability to bring an action in the Exchequer Court to enforce the terms of an  
agreement or contract with the Crown had been in place since 1875 (Petition of Right Act, S.C.  
1875, c. 27; Supreme Court and Exchequer Court Act, S.C. 1875, c. 11, s. 58; Supreme Court  
and Exchequer Court Act, R.S.C. 1886, c. 135, s. 73(2)). Sections 2, 3, 19(3) and 21 of the  
Petition of Right Act, S.C. 1876, c. 27 specifically contemplated that an action could be brought  
against the Crown in respect of a claim to land or damages by way of a fiat granted by the  
Attorney General. When a claim of that type was made, the doctrine of Crown immunity did not  
prevent the suit, nor did it substantially hinder suits against the Crown (Reasons at paras. 70-71).  
When a fiat was required to initiate a suit under the Petition of Right Act, it was granted as a  
matter of course (Re Nathan (1884) 12 Q.B.D. 461 at p. 479). The requirement for the Attorney  
General’s fiat was, in any event, abolished in 1951 with amendments to the Petition of Right Act  
and was therefore not a bar to the Blood Tribe bringing a suit.  
[115] In 1971, the Federal Court was established as the successor court to the Exchequer Court  
(Federal Court Act, S.C. 1970, I-2, C. 1). As the Federal Court found, nothing would bar the  
Blood Tribe from commencing an action in either the Exchequer Court or its successor, the  
Federal Court, a conclusion with which I agree.  
Jurisprudence prior to 1982  
[116] I begin with St. Catharines Milling & Lumber co. v. R., [1888] U.K.P.C. 70, 1888  
CarswellOnt 22 [St. Catharines Milling (JCPC)].  
 
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[117] In 1873 the Salteaux tribe of the Ojibway signed Treaty 3 with Canada in exchange for  
the promises set forth in the treaty. The St. Catharines Milling Company obtained a lease from  
Canada to cut timber on surrendered non-treaty lands. Ontario asserted that the leases were  
invalid as the title to the lands was vested in the province under section 109 of the Constitution  
Act, 1867. It sued for a declaration to that effect. Canada argued that the lands were under the  
jurisdiction of Parliament, relying on Head 91(24) of the Constitution Act, 1867.  
[118] In the Supreme Court of Canada, five of the six judges wrote separate or concurring  
reasons. Two of the justices (Chief Justice Ritchie and Fournier J.) held that underlying title was  
vested in the province; another two (Henry and Taschereau JJ.) also held that title rested with  
Ontario, but for different reasons. They held that Aboriginal title was not recognized at common  
law and that any rights to the land in question arising from the Royal Proclamation of 1763 were  
extinguished by the 1873 treaty. They also held that questions of Aboriginal title claims fell into  
the political not the judicial realm. Finally, two of the justices (Strong and Gwyne JJ.) found that  
the rights that the Salteaux had to the land had not been extinguished by the Treaty and flowed  
from both the common law and the Royal Proclamation.  
[119] In sum, a majority of four of the six Supreme Court justices found that an Aboriginal  
right to land existed, but were divided on the source, origin, nature and extent of the right, and  
two of the justices were silent on these points.  
[120] The JCPC (per Lord Watson) found in favour of the province; as the underlying title was  
vested in the Crown in right of Ontario, the leases were of no effect. Lord Watson recognized  
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that Aboriginal land rights existed, but he ascribed their existence to the Royal Proclamation. He  
declined to discuss their recognition at common law, since this issue did not appear to him  
relevant to the resolution of the dispute at hand. Lord Watson did, however, state that the rights  
of Aboriginal people in land were in any event less than fee simple. For Lord Watson, the tenure  
of Aboriginal people under the Royal Proclamation was “a personal and usufructuary right” that  
could be surrendered only to the Crown and, since the passing of the Constitution Act, 1867, only  
to the Crown in right of Canada (Mainville at pp. 19-20).  
[121] Much ink has been spilled on St. Catharines Milling. It is significant, at least in this  
context, for four points.  
[122] First, I agree with the Blood Tribe that the ratio of St. Catharines Milling was not that the  
Ojibway had a right to enforce a treaty right against Canada, but merely that if such right existed,  
was personal and usufructuary and existed at the pleasure of the Crown. As the Blood Tribe  
observes in its memorandum of argument, “[n]othing was said about the enforceability of treaty  
rights by a First Nation.”  
[123] Second, St. Catharines Milling is the foundation of the Blood Tribe’s new argument on  
appeal that Aboriginal rights were political in nature and not legally enforceable. Taschereau J.’s  
description of the Crown’s obligation to the Aboriginal peoples as “a sacred political obligation,  
in the execution of which the state must be free from judicial control” was subscribed to by one  
other judge and not commented on by the JCPC (St. Catharines Milling and Lumber Co. v. R., 13  
S.C.R. 577, 13 O.A.R. 148 at p. 649 [St. Catharines Milling (SCC)]). I will return to this  
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argument later in these reasons, but simply highlight, at this point, that the Federal Court judge  
relied on this statement to conclude that the terms of Treaty 7 were not legally enforceable.  
[124] Third, the contest in St. Catharines Milling was between Ontario and Canada. It was not  
between the Salteaux and either government, but had the Salteaux’s “rights” under the Treaty  
been in question, the Court would have viewed them as enforceable obligations.  
[125] The Supreme Court understood treaties as creating enforceable obligations, and in so  
doing, foreshadowed the Marshall decision a century later and the principles by which treaties  
were to be interpreted.  
[126] The final and most important aspect of St. Catharines Milling is what it actually decided.  
The ratio of the case is that the limited Aboriginal right found to exist was insufficient to support  
the claim by Canada that it had authority to grant timber leases that were enforceable against  
Ontario. In reaching this conclusion, the JCPC had to characterize the Treaty. Lord Watson  
found that the agreement was recorded “by a formal contract, duly ratified in a meeting of the  
their chiefs or headmen convened for that purpose,and that “the natural import of the language  
of the treaty purports to be from beginning to end a transaction between the Indians and the  
Crown” (St. Catharines Milling (JCPC) at paras. 2, 7, 16).  
[127] To conclude, while the ratio of St. Catharines Milling does not address the enforceability,  
or not, of the Treaty, the decision does stand for the proposition, that as early as 1896, the JCPC  
viewed treaties as a formal contract.  
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[128] A decade later, in 1895, the Supreme Court of Canada and the JCPC considered whether  
a treaty created an enforceable legal obligation (Annuities Case (SCC), aff’d Canada (Attorney  
General) v. Ontario (Attorney General), [1897] A.C. 199, 1896 CarswellNat 44 [Annuities Case  
(JCPC)]. There, the Ojibway in the Lake Huron district of the Robinson-Huron Treaty claimed  
that Canada had not adhered to its obligation in the treaty to provide an annual increase in their  
annuities.  
[129] There was no doubt, in either Court, whether the specific term of the treaties in question  
were enforceable. The Supreme Court noted that “the Indians are of right, under the treaties,  
entitled to the payment of the arrears(Annuities Case (SCC) at p. 498). Were there a dispute, for  
example, as to the increase in the annuities promised under the Treaty, giving rise to “some  
difficult question of construction or upon some ambiguity of language courts should make  
every possible intendment in their favour and to that end” (at p. 535 per Sedgewick J.,  
concurring majority reasons). The only question was which level of government, Ontario or  
Canada, was obligated to satisfy the Treaty commitment.  
[130] The JCPC noted that “[t]he Indians do not seem to have become aware of the full extent  
of the rights secured to them by treaty, until the year 1873, when they for the first time preferred  
against the Dominion a claim for an annual increase of their respective annuities from and after  
the date of the treaties(Annuities Case (JCPC) at para. 7). The JCPC characterized the question  
as one of “contract liability for a pecuniary obligation” (at para. 18) and that the annuities  
payable under the 1850 treaty were “debts or liabilities” the Crown was liable to pay to the  
Ojibway (at para. 3).  
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[131] The Annuities Case was not discussed by the Federal Court.  
[132] The Blood Tribe contends that the Annuities Case does not support the view a treaty  
creates an enforceable obligation. It points to the fact that the Band was not a party to the  
litigation.  
[133] With respect, I cannot agree. It is true that the Ojibway was not a party there was no  
need for it to be as the only question was which Crown Ontario or Canada, would honour the  
Treaty term. Canada had, in the pending resolution of the litigation, “graciously assumed” the  
debt (at p. 512). In other words, Canada had made the Band whole. The language of the Supreme  
Court and JCPC is unequivocal that the Ojibway had the capacity to prefer the claim against the  
Dominion and that the treaty created an enforceable debt obligation (Annuities Case (JCPC) at  
para. 7):  
The Indians do not seem to have become aware of the full extent of the rights  
secured to them by treaty, until the year 1873, when they for the first time  
preferred against the Dominion a claim for an annual increase of their respective  
annuities from and after the date of the treaties[.]  
[134] The 1905 case of Henry also demonstrates the enforceability of specific treaty  
commitments. There, the Mississaugas filed a petition in the Exchequer Court seeking a  
declaration that certain medical and educational expenses, which under the treaty were to be  
borne by Canada, had been charged to the Band’s trust account. The Band brought a claim for  
damages corresponding to the amount improperly charged, interest and an order that the amount  
be remitted to its account.  
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[135] A preliminary issue arose as to whether the Exchequer Court had jurisdiction to entertain  
the claim and grant a remedy. After reviewing section 15 of The Exchequer Court Act, 50-51  
Vict. c. 16, which granted authority to hear claims against the Crown for a claim “aris[ing] out of  
contract entered into by or on behalf of the Crown” the Court concluded that “… as their right  
thereto rests upon the treaty or contract between the Crown and them, and upon The British  
North America Act, 1867, the court has, I think, jurisdiction so to declare” (Henry at para. 13).  
Judgment was entered for the Mississaugas, requiring the payment of the annuities demanded in  
the claim. In finding in favour of the Mississaugas, the Court characterized the treaty as an  
agreement or treaty based on an agreement and consideration (Henry at paras. 6, 11-15, 19).  
[136] The Federal Court examined Henry and conceded that it was a case where a breach of  
treaty was successfully pursued in contract. However, beyond that acknowledgement, the Federal  
Court did not take the case into consideration, stating simply that no party made an argument that  
the treaty was not a contract (Reasons at para. 487).  
[137] In the course of it reasons, the Federal Court suggested that Henry might be decided  
differently today, and if the Court is saying that the terms of the Treaty would not be given legal  
effect, I do not agree (Reasons at para. 488). In both Henry and the Annuities Case, the treaty  
was enforced. The right to have certain expenses paid by the Crown in the case of Henry, or to  
the annuities in the case of the Annuities Case, rested on the treaty or contract between the  
Crown and band. The fact that the treaty was enforced is more important than the label assigned  
to the obligation.  
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[138] In the 1928 decision of R. v. Syliboy (1928), [1929] 1 D.L.R. 307, 1928 352 (NS  
SC) [Syliboy], the Nova Scotia County Court found that the Mi’kmaq lacked the capacity to enter  
into binding agreements, in this case a pre-Confederation friendship treaty. The treaty was at best  
a “mere agreement made by the Governor and council with a handful of Indians giving them in  
return for good behaviour food, presents, and the right to hunt and fish as usual” (at pp. 313-  
314). The Nova Scotia County Court concluded that the Mi’kmaq were incapable of entering  
into formal agreements.  
[139] The decision was roundly criticized in its time by academics of the day (see N.A.M  
MacKenzie, “Indians and Treaties in Law” (1929), 7 Can Bar Rev 561 at 565 (N.A.M.  
Mackenzie)) and later by the Supreme Court (Simon at paras. 18-19). I therefore treat this  
decision as an outlier that runs contrary to the jurisprudence prevailing at that time. However,  
before leaving Syliboy, I will open a parenthesis to make an observation about the academic  
literature which the Blood Tribe relies on in support of its argument that treaties are  
unenforceable.  
[140] At paragraph 97 of its memorandum, the Blood Tribe cites the Oxford Handbook of the  
Canadian Constitution (Oxford University Press, 2017, at p. 327) for the statement that the courts  
regarded treaty promises as unenforceable. Syliboy is the sole authority cited in support of this  
statement. Syliboy was incorrectly decided in its time, and remains so today. It is support for  
nothing.  
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[141] In R. v. Wesley, [1932] 4 D.L.R. 774, 1932 269 (AB CA) [Wesley], the Crown  
appealed acquittals by the Alberta Supreme Court Appellate Division of members of the Stoney  
Band charged for hunting for food on unoccupied Crown land. The judge held that there was no  
dispute that the accused were “entitled to the benefits of the Articles of Treaty” which allowed  
them to hunt on unoccupied Crown land (Wesley at p. 780). The judge held that the Game Act  
of this province … has no application to Indians hunting for food in the places mentioned in this  
section” (Wesley at p. 790). The judge convicted a third member of the Band who also appealed.  
[142] After reviewing the Annuities Case the Alberta Supreme Court, Appellate Division,  
dismissed the Crown appeals and set aside the conviction based on the terms of the treaty. In the  
course of it reasons, the Court stated that “treaties with Indians are on no higher plane than other  
formal agreements” (Wesley at p. 788). Taken at face value, this would suggest that a treaty is the  
same as “other formal agreements”, no more, no less. Regardless of the ambiguity of the phrase,  
what the Court said immediately following put any question as to whether the Treaty was  
enforceable to rest; “… this in no wise makes it less the duty and obligation of the Crown to  
carry out the promises contained in those treaties with the exactness which honour and good  
conscience dictate.”  
[143] Thus, rather than being an authority for the proposition that treaties are not enforceable,  
Wesley is a prescient recognition of the point made 90 years later in Desautel, that the focus is  
not on the label ascribed to the treaties, or the forum, whether civil, regulatory or criminal in  
which a treaty right is engaged, rather it is on the outcome. It is also a recognition of the then  
Page: 46  
well entrenched principle that the enforceability of treaties is underpinned by the honour of the  
Crown.  
[144] In the 1935 case of Dreaver the Exchequer Court considered a petition of right filed by  
the Mistawasis Band in Saskatchewan for an order that Canada pay $2,030,929.00 in respect of  
amounts improperly charged against the band’s trust account. The Band plead that the terms of  
Treaty 6 provided for free education and medicine and that charges to the band’s account for  
similar expenses breached the terms of the treaty. The petition was founded “not on simple  
contract, but by treaty on a specialty contract and a deed under seal” (at p. 97). The Court in turn  
described the petition as one “for the recovery of monies received by the trustee and retained by  
him.” In granting the petition for the band, the Court examined the terms of Treaty 6 and  
concluded that the charges were improper as they were not authorized by the treaty (at pp. 114-  
119, 122).  
[145] The Federal Court distinguished Dreaver on basis that it was “a claim to recover from  
Canada funds improperly taken by Canada from the Band’s trust account” and “not an action to  
enforce a treaty right” (Reasons at para. 481). This is not a valid distinction.  
[146] The petition was brought by various band members, including George Dreaver, the  
Band’s chief. They were acting both for themselves and “on behalf of the Indians of the  
Mistawasis Reserve” (at p. 92) and asserted the Band’s treaty right to be supplied free medicine  
and supplies. The Court interpreted the terms of Treaty 6 to determine whether the charges were  
consistent with the treaty. The treaty obligation had legal effect, and the Band’s chief used the  
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treaty obligation to assert, on the Band’s behalf, a treaty right (at pp. 92-95, 97, 100, 104, 106-  
111, 114-119, 122). The Federal Court’s reading of the case is incorrect.  
[147] The 1964 decision of the British Columbia Court of Appeal in R. v. White and Bob,  
50 D.L.R. (2d) 613, 52 W.W.R. 193, aff’d [1965] S.C.R. vi (note), 52 D.L.R. (2d) 481 [White  
and Bob], is a post-war consideration of the enforceability of the treaties. Two members of the  
Saalequun Tribe on Vancouver Island were charged with the possession of deer carcass contrary  
to provincial wildlife legislation. In their defence, the band members asserted an Aboriginal right  
to hunt deer, predicated on an 1854 agreement between their ancestors and Governor Douglas  
and the Royal Proclamation of 1763.  
[148] The Crown argued that the treaty was not an enforceable treaty as it was signed by the  
Governor, at that time a representative of the Hudson’s Bay Company, and not the Crown. In  
giving effect to the right to hunt and dismissing the charges, the Court gave a broad  
interpretation to what constitutes a treaty within the meaning of the Indian Act.  
[149] White and Bob is pertinent as it reflects, as of 1964, the view of the BCCA as to the legal  
status of treaties and the obligations they confer. Despite the absence of the formalities  
accompanying other historical treaties, Norris J.A. said, “Parliament recognized the fact that  
Indian treaties would have been completed in degrees of formality varying with the  
circumstances of each case” (at p. 657). That in considering whether a specific document was a  
valid treaty or not that it was “particularly important [to Parliament] for the maintenance of law  
and order that Indian rights be respected and interpreted broadly in favour of the Indians” (at  
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p.657). As “Indian rights [including treaty rights] had been recognized by the colonial  
government” (at p. 662), Norris J.A. concluded that “the document (ex. 8) is a Treaty within the  
meaning of s. 87 of the Indian Act(at p. 663).  
[150] The 1974 case of R. v. Dennis, 56 D.L.R. (3d) 379, 1974 1185 (BC PC) [Dennis]  
considered treaty rights as a defence to a wildlife contravention. The BC Provincial Court stated  
that Treaty 8 was “similar to an agreement or contract” (at p. 382). However, the Court also  
ultimately found that because the defendant’s particular band was not a signatory to Treaty 8,  
members of that band could not benefit from the treaty.  
[151] In Pawis (1980), four members of the Ojibway alleged that Canada had, in enacting the  
Ontario Fishing Regulations, “breached and contravened treaty and contractual obligations  
which were solemnly undertaken and entered into in the Lake Huron Treaty of 1850” (at  
subpara. 5(15)). The band members asserted that the Regulations were of no force or effect,  
given the covenant in the Lake Huron Treaty (Pawis at subpara. 5(3)) granting “full and free  
privilege” to hunt and fish.  
[152] In dismissing the action, the Court concluded that the regulations, as valid federal  
legislation, constrained the commitment in the treaty. In this regard, the result is no different than  
any other case prior to section 35. Parliament could abrogate and interfere with treaties in the  
exercise of its supremacy. What is significant, however, is it was necessary for the Federal Court  
to characterize the legal nature of the treaty, the promises it contained and the means of their  
enforcement (Pawis at para. 9):  
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The promises made [in the Treaty] … were undoubtedly designed and intended to  
have effect in a legal sense and a legal context. The agreement can therefore be  
said to be tantamount to a contract, and it may be admitted that a breach of the  
promises contained therein may give rise to an action in the nature of an action for  
breach of contract.  
[153] In Hay River (1980), the Federal Court considered a declaratory action against Canada  
for including, within the lands set aside under Treaty 8, land within the municipal boundaries of  
the Town of Hay River. The Town contended that Canada breached the terms of Treaty 8 which  
excluded municipal lands from selection. The Federal Court concluded that the Town had no  
standing to interfere in the implementation of the Treaty obligations and rejected the argument  
the benefits of the Treaty could not be enjoyed by successors. The Court noted that Treaty 8 was  
not “simply a contract between those who actually subscribed to it. It does impose and confer  
continuing obligations and rights on the successors of the Indians who entered into [the Treaty]”  
(at para. 5).  
[154] Taylor (1981) is a further example of a Band enforcing its treaty rights prior to 1982. At  
issue was whether the terms of Treaty 20 preserved or granted the right to fish and hunt on  
Crown lands despite the provincial regulatory limitations. The Ontario Court of Appeal looked to  
the minutes accompanying the execution of Treaty 20 and held that the treaty preserved the  
historic rights of the Chippewa to hunt and fish on Crown lands. By virtue of section 88 of the  
Indian Act, the provincial regulations did not extinguish the Chippewa’s treaty right to hunt and  
fish.  
[155] The Federal Court misunderstood the Ontario Court of Appeal’s reasons in Taylor when  
it concluded that [t]he Court of Appeal held that provincial laws of general application dealing  
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with hunting and fishing had no application to Indians because those rights had been preserved  
by the Royal Proclamation of 1763, independent of the Indian Act(Reasons at para. 489).  
[156] This is not so. The Ontario Court of Appeal did not accept the Divisional Court’s reasons  
regarding the Royal Proclamation, noting that it had “serious reservations as to the correctness”  
of the Divisional Court’s reasons as they related to the Royal Proclamation as the source of the  
continued right to hunt and fish (Taylor at paras. 25-26). The Treaty right to hunt and fish was  
protected from provincial encroachment by section 88 of the Indian Act.  
[157] In support of the conclusion that treaties were unenforceable prior to 1982, the judge  
relied on two cases: R. v. Sundown, [1999] 1 S.C.R. 393, 1999 673 (SCC) at para. 24  
[Sundown], and First Nation of Nacho Nyak Dun v. Yukon at para. 37. Neither of these cases  
support that conclusion; rather they stand for the point, which I take to be uncontroverted, that  
treaties are more than contracts and have a unique, sui generis status. This does not lead to the  
conclusion that the TLE claim was unenforceable.  
[158] While hunting, Mr. Sundown, a member of a band that was a signatory to Treaty 6, cut  
down trees in a provincial park to build a cabin. He was charged with a provincial regulatory  
offence of cutting down trees and constructing a dwelling in a provincial park. The issue was  
whether these acts were, applying the test in Simon, “reasonably incidental” to the exercise of the  
treaty right to hunt and fish guaranteed by Treaty 6. The Supreme Court held that they were,  
noting that treaty rights must be given a broad interpretation, one which avoids the strictures and  
assumptions of traditional common law concepts.  
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[159] Nothing in the reasons in Sundown can be read as guidance to interpret treaties in a  
manner which undermines their enforceability or suggesting that, prior to 1982, a court would  
not recognize the TLE claim; to the contrary, the Supreme Court reinforces their unique, sui  
generis character and the imperative that their terms be interpreted in accordance with their  
underlying purposes.  
[160] There are elements of treaties that do not fit into traditional common law concepts; they  
are binding in perpetuity and grant rights not only the original signatories but whole Aboriginal  
peoples and their descendants. The rights given are held by the collective of the band or tribe,  
and not particular individuals. Sundown is not, therefore, authority for the proposition that  
treaties are to be restricted or constrained by the common law, rather, it stands for the opposite,  
that the common law works to acknowledge and reinforce their terms and purposes. The reasons  
of the Federal Court do not explain how holding treaties to be unenforceable furthers the  
underlying purposes of treaties, let alone the objective of reconciliation.  
[161] The second case relied on by the judge for the conclusion that treaties are not enforceable  
is First Nation of Nacho Nyak Dun v. Yukon. Here, the Court was asked to consider whether  
amendments by the Yukon government to territorial land use plans conformed to the  
comprehensive land use agreement reached between Canada, Yukon and the Aboriginal peoples  
of Yukon. The Court considered the appropriate degree of judicial intervention in the  
implementation of modern treaties, noting that courts should generally leave space for the parties  
to govern together and work out their differences. In the final analysis, however, under section  
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35 of the Constitution Act, 1982, modern treaties are constitutional documents, and courts play a  
critical role in safeguarding the rights they enshrine.  
[162] First Nation of Nacho Nyak Dun v. Yukon does not stand for the proposition that pre-  
1982 treaties were not enforceable. Again, simply because treaties that were characterized as sui  
generis, solemn agreements that were more than contractsand were granted constitutional  
protection in 1982 does not lead to the conclusion that they were unenforceable prior to that date.  
Sparrow makes clear that they were, and the effect of section 35 was to prevent their erosion by  
legislation (Sparrow at pp. 406-408, 409-410, 415-416; Badger at paras. 76-77, 79, 82).  
[163] In conclusion, I will breach my own counsel with respect to the demarcation between  
treaty and Aboriginal rights cases and make a detour into two Aboriginal title cases Calder and  
Guerin.  
[164] As is well known, the 1973 decision of Calder did not decide the question of which of  
two competing views prevailed: the view of Judson J. (Martland and Ritchie JJ. concurring), that  
Aboriginal rights were not recognized at common law and were not enforceable, or the view of  
Hall J. that, “[t]here is a wealth of jurisprudence affirming common-law recognition of  
aboriginal rights to possession and enjoyment of lands of aborigines” (at p. 315 (Laskin and  
Spence JJ., concurring).The Court was evenly divided and the issue was not decided. Calder  
ultimately turned on the view of Pigeon J. who dismissed the appeal on procedural grounds. A  
decade later, in Guerin, the Supreme Court adopted the view of Hall J.  
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[165] Calder and Guerin were both Aboriginal title cases they were not treaty cases.  
However, we know that while in 1973 the court was divided on the question of the existence of  
Aboriginal title, by 1983, those same Aboriginal rights were unquestionably enforceable. The  
fact that the concept of Aboriginal title achieved recognition at common law by 1983 reinforces  
the conclusion that choate, precise treaty rights such as the TLE claim in issue here were  
enforceable on the expiry of the limitation period. As I mentioned at the outset of these reasons,  
it would be a highly anomalous, if not incoherent, result to conclude otherwise.  
Post section 35 jurisprudence  
[166] As I mentioned earlier, the Court is being asked to take a picture of the state of the law as  
of the expiry of the limitation period and determine whether the claim for a breach of the TLE  
would have been recognized. The jurisprudence that follows the limitation date confirms the  
conclusion that Treaties create enforceable obligations on this, the guidance of the Supreme  
Court has been consistent.  
[167] In the 1985 decision of Simon, the Supreme Court considered the interplay between the  
Treaty of 1752 and Nova Scotia’s wildlife legislation, the Lands and Forests Act, R.S.N.S. 1967,  
c. 163, s. 150(1). Under that legislation, a band member was charged with possession of a  
shotgun and rifle during a closed hunting season. In finding that the provincial law conflicted  
with the treaty-protected hunting rights, Dickson C.J.C. observed at para. 33: “An Indian treaty is  
unique; it is an agreement sui generis which is neither created nor terminated according to the  
rules of international law.” The Chief Justice continued, noting at para. 51:  
 
Page: 54  
Finally, it should be noted that several cases have considered the Treaty of 1752  
to be a valid "treaty" within the meaning of s. 88 of the Indian Act (for  
example, R. v. Paul, supra; and R. v. Atwin and Sacobie, supra). The Treaty was  
an exchange to solemn promises between the Micmacs and the King's  
representative entered into to achieve and guarantee peace. It is an enforceable  
obligation between the Indians and the white man and, as such, falls within the  
meaning of the word "treaty" in s. 88 of the Indian Act. [Emphasis added]  
[168] In the 1996 decision of Badger, the defendants were charged with violations under the  
Alberta Wildlife Act, S.A. 1984, c. W-9.1. In their defence, they relied on a term in Treaty 8  
which granted a right to hunt for food on private lands. In upholding the convictions against two  
of the three accused, the Supreme Court concluded the treaty rights were restricted where the  
land was put to visible use. The appeal of the third was allowed, and new trial directed on  
whether the infringement of the right to hunt on unoccupied lands was justified.  
[169] The focus of the Supreme Court’s reason was on the extent to which paragraph 12 of the  
Natural Resources Transfer Agreement, Constitution Act, 1930, 20-21 George V, c. 26 (U.K.)  
[NRTA], affected the right to hunt granted in Treaty 8. This engaged the question of how treaty  
rights, when affected by legislation, are to be interpreted. In addition to setting out basic  
principles of interpretation (Badger at pp. 793-794) and concluding that the Sparrow test,  
applicable to the infringement of Aboriginal rights, should apply to the NRTA (thereby  
extending the test to include treaty rights), the Court concluded that a Treaty represents an  
exchange of solemn promises between the Crown and Indians, whose agreement is “sacred”  
(Badger at p. 793). Treaties create “enforceable obligations based on the mutual consent of the  
parties” (Badger at p. 812).  
Page: 55  
[170] In 1999, the Supreme Court set forth the principles governing the interpretation of treaties  
(R. v. Marshall, [1999] 3 S.C.R. 456, 177 DLR (4th) 513 at para. 78). They are worthwhile  
describing in full:  
78. This Court has set out the principles governing treaty interpretation on many  
occasions. They include the following.  
1. Aboriginal treaties constitute a unique type of agreement and  
attract special principles of interpretation: R. v. Sundown, [1999] 1  
S.C.R. 393, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at  
para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon v.  
The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. [Sákéj]  
Youngblood Henderson, "Interpreting Sui Generis Treaties"  
(1997), 36 Alta. L. Rev. 46; L.I. Rotman, "Defining Parameters:  
Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory  
Test" (1997), 36 Alta. L. Rev. 149.  
2. Treaties should be liberally construed and ambiguities or  
doubtful expressions should be resolved in favor of the aboriginal  
signatories: Simon, supra, at p. 402; Sioui, supra, at  
p. 1035; Badger, supra, at para. 52.  
3. The goal of treaty interpretation is to choose from among the  
various possible interpretations of common intention the one which  
best reconciles the interests of both parties at the time the treaty  
was signed: Sioui, supra, at pp. 1068-69.  
4. In searching for the common intention of the parties, the  
integrity and honour of the Crown is presumed: Badger, supra, at  
para. 41.  
5. In determining the signatories' respective understanding and  
intentions, the court must be sensitive to the unique cultural and  
linguistic differences between the parties: Badger, supra, at  
paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901 at p. 907.  
6. The words of the treaty must be given the sense which they  
would naturally have held for the parties at the time: Badger,  
supra, at paras. 53 et seq.; Nowegijick v.The Queen, [1983] 1  
S.C.R. 29, at p. 36.  
7. A technical or contractual interpretation of treaty wording  
should be avoided: Badger, supra; Horseman, supra; Nowegijick  
supra.  
Page: 56  
8. While construing the language generously, courts cannot alter  
the terms of the treaty by exceeding what is possible on the  
languageor realistic: Badger, supra, at para. 76; Sioui, supra, at  
p. 1069; Horseman, supra, at p. 908.  
9. Treaty rights of aboriginal peoples must not be interpreted in a  
static or rigid way. They are not frozen at the date of signature.  
The interpreting court must update treaty rights to provide for their  
modern exercise. This involves determining what modern practices  
are reasonably incidental to the core treaty right in its modern  
context: Sundown, supra, at para. 32; Simon, supra, at p. 402.  
[171] While it is perhaps too obvious to state, none of these principles have meaning or utility  
unless the treaty terms were enforceable they would be mere academic meanderings of no  
practical importance whatsoever. I do not believe that to be the case. When the Supreme Court  
speaks, as did in Marshall, it did so in light of the long history of jurisprudence that gave legal  
effect to treaties.  
[172] A second point arises from Marshall. While the Supreme Court was quite conscious of  
the sui generis nature of treaties, it did not hesitate to analogize the obligations to those of a  
contract. After reviewing the law with respect to when the court will supply a term to remedy a  
deficiency in a contract, Binnie J. wrote at para. 43:  
If the law is prepared to supply t