Canada v. Jim Shot Both Sides

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

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, 1982” and, “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. (4^th) 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 Ojibway’s 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

Page: 36

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).

Page: 37

[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)].

Page: 38

[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

Page: 39

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

Page: 40

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.

Page: 41

[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).

Page: 42

[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.

Page: 43

[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.

Page: 44

[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.

Page: 45

[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

Page: 47

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

Page: 48

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):

Page: 49

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

Page: 50

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.

Page: 51

[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

Page: 52

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 contracts” and 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.

Page: 53

[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

language” or 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 the deficiencies of written contracts prepared by

sophisticated parties and their legal advisors in order to produce a sensible result

that accords with the intent of both parties, though unexpressed, the law cannot

ask less of the honor and dignity of the Crown in its dealings with First Nations.

[173] Put otherwise, the honour and dignity of the Crown ensures the efficacy of treaty

commitments.

Page: 57

[174] In Manitoba Metis the Supreme Court considered the relationship between treaty

commitments to the Metis and section 31 of the Manitoba Act. Citing Sioui, the Court observed

that treaties can be analogized to constitutional commitments that were entered into with the

intention to create “legal obligations” which were “of the highest order” and that “a certain

measure of solemnity” attach to both (at paras. 71, 92). While the Federal Court considered

Manitoba Metis in the context of whether it could waive a limitation period, it did not consider

the clear guidance of the Supreme Court that the historic treaties created legally enforceable

obligations.

[175] Canadian courts have been agnostic to how treaties are legally classified and as to the

means or “form” by which their terms are enforced. Treaties have evolved from “solemn

agreements” to “contracts”, to instruments protected from provincial encroachment under section

88 of the Indian Act in 1951, to sui generis agreements, to constitutionally protected agreements.

Regardless of the label applied, there is a unifying theme – that treaty rights were legally

enforceable (Badger at para. 76; see also Ontario (A.G.) v. Bear Island Foundation, [1991] 2

S.C.R. 570 at p. 575; Annuities Case (SCC); Marshall at para. 50; Campbell v. British Columbia

(A.G.) (2000), 189 D.L.R. (4th) 333 (B.C.S.C) at para. 84; B. Slattery, “Making Sense of

Aboriginal and Treaty Rights” (2000) 79 Can. Bar Rev. 196 at pp. 209-210). I do not agree,

therefore, with the Federal Court when it concluded that because the Supreme Court has said

treaties “are not contracts” that an action pled in contract for breach of the TLE term, was not

cognizable (Reasons at paras. 488, 508).

Page: 58

Academic commentary

[176] The academic writing in the area of treaty rights must be read carefully. Some of it is

aspirational or policy based, while some of it is rooted in the law. When it is rooted in the

jurisprudence, it reflects the view that treaties were enforceable. Careful reading of the academic

literature, as with jurisprudence, is required because language to the effect that treaties were

“unenforceable” reflect an undisputed fact – that prior to 1951 treaty rights for hunting and

fishing could be restricted by provincial and federal legislation, and from 1951 to 1982, by

federal legislation. However, there is nothing in the literature that indicates that a determinable

treaty term, promising a set amount of land, would not be enforceable at the eve of the expiry of

the limitation period. To the contrary, the academic literature supports the interpretation that

treaties were enforceable prior to 1982.

[177] Professor Grammond (now Grammond J.) wrote in Terms of Coexistence: Indigenous

Peoples and Canadian Law (Toronto: Thomson Reuters Canada, 2013) that a treaty can be

enforced, independent of a legislative or constitutional provision that ensures the protection of

the treaty:

This means that the parties to a treaty could, if they so desire, base themselves on

contract law in order to have it enforced. Two decisions of the Exchequer Court,

as well as a recent decision involving the Nunavut Land Claims Agreement,

granted monetary claims based on the State's breach of treaty obligations. In such

cases, it is possible to enforce a treaty independently of the laws or constitutional

provisions that ensure its protection (at p. 306).

[178] Similarly in The Aboriginal Rights Provisions in the Constitution Act, 1982, (Saskatoon:

Native Law Center (1987)), W.F. Pentney (now Pentney J.), concluded, after reviewing the legal

Page: 59

nature of numbered treaties, that, “[t]he fact that treaties are placed in a category by themselves

does not detract from their legal status or enforceability” (at p. 137).

[179] In their seminal work Borrows and Rotman write that “where the Crown’s treaty

obligations were viewed as binding, they remained subject to abrogation or elimination by the

Crown” (at p. 11), and later that “the Crown’s obligations under such treaties were considered to

be entirely political rather than legal” (at p. 17). Read in its context, however, they were referring

to the political obligation to forebear regulatory or legislative interference. The authors were also

addressing a different question, whether treaty rights were viewed by Canadian courts as

bridging Indigenous laws and the common law tradition.

[180] Douglas Sanders concludes that, “[t]he courts enforced treaty promises involving the

payment of moneys, either annuity payments or moneys for medicines, on the basis of contract

law” (“Pre-existing Rights: The Aboriginal Peoples of Canada” in Beaudoin & Ratushy, eds.,

The Canadian Charter of Rights and Freedoms, 2nd ed., (Toronto: Carswell, 1989) at p. 728).

However, he also noted the difficulty of asserting certain treaty rights prior to 1982, such as the

right to hunt and fish, in the face of countervailing legislation, noting that the contract law basis

did not “work for other treaty promises when they came into conflict with legislation, such as

federal and provincial hunting laws” (at p. 728).

[181] Finally, in An Overview of Aboriginal and Treaty Rights and Compensation for Their

Breach, at page 50, Robert Mainville wrote:

An Aboriginal treaty does not normally require parliamentary legislation in order

to come into effect, unless the provisions of the treaty so provide. Treaties bind

Page: 60

the Crown, and if the Crown does not execute the promises it made in the treaty,

redress can be sought against the Crown irrespective of any parliamentary

approval. Treaties thus “create enforceable obligations based on the mutual

consent of the parties.”

[182] I conclude this review of the academic literature by referring to the late Professor Peter

Hogg, in Constitutional Law of Canada, 5th ed. Vol. 1 (Toronto: Thomson Carswell, 2007).

After reviewing the jurisprudence, he notes that one of the defining characteristics of the

numbered Treaties is “the intention to create legally binding obligations” (at p. 790). He also

identifies four “infirmities” in both treaty and aboriginal rights. The first, and only one applicable

here was (at p. 794):

One was the uncertainty as to the precise legal status of the rights. Both the

relationship of the aboriginal peoples to the land and the treaties between the

Crown and the aboriginal peoples lacked close analogies in the common law. This

uncertainty has been partially lifted by recent decisions recognizing aboriginal

and treaty rights, but uncertainties persist, especially as to the definition of

aboriginal rights.

The uncertainty related to how treaties were categorized, a point resolved by the Supreme Court

in Simon in recognizing their sui generis nature. At no point does Professor Hogg suggest a

treaty right in the nature of the TLE claim, is unenforceable.

Statutory authority to sue

[183] The Federal Court judge offered a third reason for concluding that there was no right of

action at common law to sue on a treaty. The judge found that the Indian Act was a statutory

impediment to a suit to enforce a treaty. After reviewing section 88 of the Indian Act, the judge

concluded that “[t]here is nothing in the Indian Act permitting a First Nation to bring an action to

Page: 61

enforce the TLE under a Treaty” (at paras. 499-500). Absent a legislative authority to sue, there

was no ability by a band to enforce a treaty.

[184] This conclusion cannot be sustained. There has never been a requirement that the Indian

Act permit or grant an authority to sue to enforce a treaty. In any event, this is not the effect of

section 88 of the Indian Act. Section 88 does not bar a right of action by a band at common law;

to the contrary section 88 provides protection to treaty rights from interference or erosion by

provincial legislation. Not one of the many cases that have considered section 88 have

concluded, or suggested, that its purpose was to bar Aboriginal Canadians the right to pursue

actions in the civil courts to enforce a treaty commitment.

[185] Aboriginal rights survived the assertion of sovereignty and were absorbed into the

common law as rights Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911 at paras. 10-11).

Those were not empty rights. The common law has driven the growth of Aboriginal rights from

Calder to Guerin to Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1997 302

(SCC) [Delgamuukw]; to Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245

[Wewaykum]. The point is made expressly in Roberts v. Canada, [1989] 1 S.C.R. 322, 1989

122 (SCC) where Wilson J. observes that the Indian Act is “not constitutive of the

obligations owed to the Indians by the Crown” (at p. 337). On the Federal Court’s understanding,

none of these landmark cases, whether for breach of a treaty, breach of an Aboriginal right or for

declaration of title were properly before the courts because the Indian Act did not authorize a

band to sue.

Page: 62

[186] In Fairford First Nation v. Canada (Attorney General), [1999] 2 FC 48,

1998CarswellNat 2201 at para. 66, after considering subsection 31(3) of the Indian Act,

Rothstein J., then of the Federal Court, concluded that that section “preserves for an Indian or

Indian band the opportunity to bring an action against anyone interfering with their rights,”

noting that “ … Indians may sue for negligence, trespass, or I think, any other interference with

their interest in their land or any other rights recognized by statute, common law or, indeed, the

Constitution.” [Emphasis added] (I note, parenthetically, that section 31 was motivated by the

collective nature of ownership on a reserve. Indeed, subsection 31(3) expressly provides that

nothing in the section “impair[s], abridge[s] or otherwise affect[s] any right or remedy”

otherwise available to an Indian or a band.)

[187] This was not new law in 1998 when Rothstein J. penned his reasons. The conclusion had

an antecedence in the decision in Apsassin v. Canada, [1988] 3 F.C. 20, 1987 CarswellNat 229,

where, in dealing with an argument that the Indian Act limited the band’s capacity to sue, Addy

J. concluded that “[t]hey [the band] are fully entitled to avail themselves of federal and

provincial laws and of our judicial system as a whole to enforce their rights, as they are indeed

doing in the case at bar” (at para. 53).

[188] The conclusion reached by the Federal Court is also inconsistent with the presumption of

statutory interpretation that, absent express language, legislation does not intend to interfere with

or displace common law rights (Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin

Law Inc., 2016) at p. 315 [Sullivan]). To this I would add that the argument advanced is,

presumptively, offensive of section 15 of the Charter. Courts are to eschew interpretations which

Page: 63

offend the Charter (Sullivan, at p. 307; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 33;

Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, 448 D.L.R. (4th) 714 at para.

46).

[189] Finally, I note that none of the case law surveyed which recognized a cause of action for

a breach of a treaty commitment relied on the provisions of the Indian Act as the basis or

foundation on which the claim could proceed.

[190] No more need be said about this argument.

The political trust doctrine

[191] The Blood Tribe bolsters the judge’s conclusion that treaties were unenforceable by

reference to what is known as “the political trust” doctrine, a view for a period of time in the

evolution of Crown/Indigenous jurisprudence that the Crown’s obligations in respect of

Indigenous Canadians were viewed as political and not legal, obligations. As noted earlier, this

argument was neither argued before the Federal Court nor relied on by the judge in his Reasons.

The Attorney General objects on the basis that Blood Tribe is attempting to defend the result on

an entirely new argument. I agree with these objections, but nevertheless as the question is

related to the question whether treaties were enforceable at common law, and was responded to

by the Attorney General in his reply memorandum, there is no prejudice in it being addressed.

Page: 64

[192] I do not agree that the doctrine supports the conclusion that treaty rights, as opposed to

Aboriginal rights, were unenforceable as of the expiry of the limitation period. The doctrine,

applicable to Aboriginal rights, cannot be transported into the law of treaties.

[193] St. Catharines Milling is the foundation of the political trust doctrine. There, Taschereau

J. referred to “a sacred political obligation, in the execution of which the state must be free from

judicial control” (St. Catharines Milling (SCC) at p. 649). In Wewaykum at para. 73, Binnie J.

observed that “[p]rior to its watershed decision in Guerin, this Court had generally characterized

the relationship between the Crown and Indian peoples as a ‘political trust’ or ‘trust in the higher

sense’”, citing Tashereau J.’s observation.

[194] As Mainville points out, the political trust doctrine is a reflection of two principles (at

p. 50). The first is that the original decision to enter into the treaties was an exercise of the royal

prerogative, and secondly, prior to 1982, treaty rights could be abrogated or constrained by

legislation. The decision to enact legislation which constrained or extinguished was also a

political choice from which the Crown should generally forebear. However, the decision to enter

into a treaty, and the decision whether to enact legislation that constrained its terms are entirely

different questions from the question whether a treaty right was enforceable. Not only is it a

different question, in this case it is an irrelevant question to the disposition of the issue on appeal

as there is no constraining legislation.

[195] I agree with the view of the Blood Tribe that St. Catharines Milling says nothing about

the enforceability of treaties (RMFL at para. 60). But the Blood Tribe asserts that the “sacred

Page: 65

political obligation” was how the Court characterized treaty commitments (RMFL at paras. 13

and 58). I do not agree. Taschereau J., in dissent, found that there was no Aboriginal interest in

the lands occupied at the time of the Royal Proclamation, that only the Crown in right of Ontario

had title and that the administration of the lands was “a sacred political obligation”. I have

already explained that the JCPC did not see treaties in that light.

[196] The political trust doctrine does not apply to the question whether a treaty right is

enforceable. Where the political rights doctrine is applicable, however, is in respect of

Aboriginal rights.

[197] Prior to 1982, assertions of Aboriginal rights were viewed as a political issue between

Indigenous Canadians and the federal and provincial governments. For example, the Statement of

the Government of Canada on Indian Policy (1969) contained assertion (at p. 11) that

“aboriginal claims to land . . . are so general and undefined that it is not realistic to think of them

as specific claims capable of remedy except through a policy and program that will end injustice

to Indians as members of the Canadian community.” There are subsequent iterations of that

position in 1971 and 1981. All of those policy papers are equally clear, however, that the

Government of Canada considered treaties as lawful obligations (Statement of the Government

of Canada on Indian Policy, Department of Indian and Northern Affairs, 1969, at p. 11).

[198] The political trust doctrine reflected the position of governments, federal and provincial,

prior to the watershed decision in Guerin, that inchoate assertions of Aboriginal rights,

Aboriginal title or non-treaty rights were a matter of political dialogue. It is well known that up

Page: 66

until Guerin the Attorney General resisted such claims on the basis that they were not justiciable

(see R. v. Guerin, [1983] 2 F.C. 656, 143 DLR (3d) 416, per Le Dain J.A.; Semiahmoo Indian

Band v. Canada, [1998] 1 F.C. 3, 148 DLR (4th) 523 [Semiahmoo] per Isaac C.J.). As

McLachlin C.J.C. wrote in Mitchell, “[t]he common law status of aboriginal rights rendered them

vulnerable to unilateral extinguishment, and thus they were ‘dependent upon the good will of the

Sovereign’” (at para. 11). Pointedly, McLachlin C.J.C. cited St. Catharines Milling (JCPC) (at

para. 7) as authority, making clear the link between the political or policy based question of

Aboriginal rights and the political rights doctrine.

[199] The argument before us transposes the language, designed to explain the position of

governments with respect to non-treaty rights, into the law of treaties. To the contrary, the

enforceability of treaty rights does not depend on a discretionary political trust. Cases such as

Guerin and Semiahmoo concerned fiduciary obligations arising from Canada’s administration of

band affairs and finances. They were not treaty cases and do not inform the question whether a

treaty was actionable at common law; indeed, the application of the political trust doctrine in the

context of a treaty claim has been rejected by this Court (Peepeekisis First Nation v. Canada,

2013 FCA 191, 448 N.R. 202 at para. 50 [Peepeekisis]).

Section 35(1) of the Constitution Act, 1982

[200] Subsection 35(1) of the Constitution Act provides that “[t]he existing aboriginal and

treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed”.

Page: 67

[201] Section 35 recognizes the prior occupation of Canada by organized, autonomous societies

and seeks to reconcile their modern-day existence with the Crown’s sovereignty over them

(Desautel). Section 35 must be read with section 25(a) of the Charter, which guarantees that the

Charter will not abrogate or derogate from any “aboriginal, treaty or other rights”, including “any

rights that have been recognized by the Royal Proclamation of October 7, 1763.”

[202] The crux of the Blood Tribe’s position is that the claim for breach of the TLE term of

Treaty 7 only became actionable with the enactment of subsection 35(1). It submits that in

enshrining existing treaty rights into the Constitution Act, 1982, a new cause of action was

created, with the result that the limitation period only began to run with the enactment of

subsection 35(1). This argument found favour with the Federal Court judge, who concluded that

“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).

[203] The Attorney General’s position is that section 35 recognized and affirmed Aboriginal

and treaty rights that had not been extinguished before April 17, 1982 when the Constitution Act,

1982, came into force.

[204] The effect of subsection 35(1) was to constitutionalize existing rights such that treaty

rights, and other Aboriginal rights could no longer be unilaterally modified by federal legislation.

The point was first made in Delgamuukw at paras. 38-39, 133-134 and later in Mitchell at para.

11:

The common law status of aboriginal rights rendered them vulnerable to unilateral

extinguishment, and thus they were “dependent upon the good will of the

Page: 68

Sovereign”: see St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14

App. Cas. 46 (P.C.), at p. 54. This situation changed in 1982, when Canada’s

constitution was amended to entrench existing aboriginal and treaty rights:

Constitution Act, 1982, s. 35(1). The enactment of s. 35(1) elevated existing

common law aboriginal rights to constitutional status (although, it is important to

note, the protection offered by s. 35(1) also extends beyond the aboriginal rights

recognized at common law: Delgamuukw v. British Columbia, 1997 302

(SCC), [1997] 3 S.C.R. 1010, at para. 136). Henceforward, aboriginal rights

falling within the constitutional protection of s. 35(1) could not be unilaterally

abrogated by the government. However, the government retained the jurisdiction

to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and

compelling public objectives: see R. v. Gladstone, 1996 160 (SCC),

[1996] 2 S.C.R. 723, and Delgamuukw, supra.

[205] Subsection 35(1) is not the source of treaty rights. Treaty rights flow from the treaty, not

the Constitution. While treaty rights are protected by the constitution, their amplitude is

determined by the terms of the treaty as interpreted according to the Marshall principles. The

same may be said about Aboriginal rights; section 35 did not create the legal doctrine of

Aboriginal rights – Aboriginal rights existed and were recognized at common law. By the

enactment of section 35 “a pre-existing legal doctrine was elevated to constitutional status” (R. v.

Van der Peet at paras. 28-29).

[206] By its express and unambiguous terms, the scope of section 35 requires, in each case, an

inquiry into whether the treaty right was existing as of April 17, 1982. Not all treaty rights were

given protection as of that date; were that the case, the word “existing” would not have been

required. Every word in a statute, and constitutional statutes in particular, must be given

meaning; words are not included for aesthetic or rhetorical effect, nor does the legislature make

the same point twice. Tautology is to be avoided and, “it is presumed that every feature of a

legislative text has a particular role to play in the legislative design” (Sullivan at pp. 43-47).

Page: 69

Regardless of the subjective perceptions of the fairness of the result, section 35 did not

resuscitate previously barred actions.

[207] To accept argument that the effect of section 35 is to resuscitate claims that were barred

by law is to effectively erase the word from the Constitution Act, 1982 or render it redundant. It

would be redundant because the same result could have been achieved without the word being

included. The Federal Court’s reasons give no content to the word “existing” in section 35.

[208] The Blood Tribe contends that there is a parallel to be drawn between section 35 of the

Constitution and section 15 of the Charter. Prior to 1985, Canadian courts had rejected actions

for breaches of equality at common law and consequently, plaintiffs asserting a claim based in

tort or seeking declaratory relief had no cause of action. Section 15 changed that, creating a

remedy where none had previously existed.

[209] In support of this argument the Blood Tribe analogizes the TLE claim to those in

Ravndahl. There, the Court found that an action for breach of equality arose for the first time on

April 17, 1985, when section 15 of the Charter came into effect. However, unlike Ms. Ravndahl

who had no cause of action prior to section 15 coming into force, the Blood Tribe had a cause of

action prior to the enactment of subsection 35(1). In light of my conclusion that a Canadian court

could have granted a remedy for the breach of the TLE prior to 1982, the analogy to Ravndahl

fails. Section 15 and section 35 do not operate in a similar fashion, and the limitation period for

breach of Treaty 7 began to run before the enactment of section 35.

Page: 70

Section 35 of the Constitution Act and limitations legislation

[210] The Federal Court found that the claim for breach of treaty was discoverable as early as

1971 and that the band was well equipped to pursue its action; consequently, had a cause of

action for breach of a treaty commitment been available, the six-year limitation period in

paragraph 5(g) of The Limitation of Actions Act, 1970 would have barred the action. These

findings are not contested and no issue is raised before us as to whether, as a matter of statutory

interpretation or constitutionality, paragraph 5(g) barred the action had a cause of action existed.

[211] The argument advanced before us, and which found favour with the Federal Court, was

that section 35 created a new cause of action and gave the Blood Tribe a right to pursue the TLE

claim. On this understanding of section 35, the issues whether a cause of action existed and the

application or not of the limitation period and waiver, which occupied a large portion of the

reasons below and the argument before us, are entirely irrelevant. The effect of section 35 is to

allow past claims to arise, phoenix-like, from the past.

[212] The flaw in this reasoning is revealed if examined in the light of the jurisprudence on

limitation periods. Limitation periods have been consistently applied to treaty claims regardless

of whether they arose before or after 1982. The Federal Court’s understanding of section 35

cannot be reconciled with this jurisprudence.

Page: 71

Supreme Court of Canada guidance

[213] The Supreme Court, other appellate courts, and the Federal Court, have consistently

applied limitations legislation to both Aboriginal rights and treaty claims.

[214] In Wewaykum, the Court held that the Crown owed a fiduciary duty but that the claim

would have been barred by equitable defences and a limitation period. The Court found that the

causes of action arose in 1938 and 1888, and that even if the running of the limitation period was

initially postponed because of a lack of pertinent information, the relevant limitation period

expired no later than the end of 1957 (at paras. 111, 129).

[215] In Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372

[Lameman], the Band alleged breach of fiduciary duty, fraudulent and malicious behaviour and

breach of treaty (at para. 4). As in this case, the claim rested on the assertion that the government

breached its treaty obligations by not granting the Band lands to which it was entitled under the

treaty. The federal Crown brought a motion for summary judgement asking that the claim be

dismissed for various reasons, including that the claims were barred by the statutes of limitations.

[216] The Supreme Court held that the treaty breach was discoverable in the 1970s and was

barred by the Alberta Limitation of Actions Act, 1970. The Supreme Court dismissed the

plaintiffs’ action for all claims except for a continuing claim for an accounting for funds received

from the sale of reserve lands. In holding the action barred, the Supreme Court stated, at

para. 13:

Page: 72

This Court emphasized in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R.

245, 2002 SCC 79, that the rules on limitation periods apply to Aboriginal claims.

The policy behind limitation periods is to strike a balance between protecting the

defendant’s entitlement, after a time, to organize his affairs without fearing a suit,

and treating the plaintiff fairly with regard to his circumstances. This policy

applies as much to Aboriginal claims as to other claims …

[217] In drawing the conclusion that the breach of treaty claim was not captured by the Alberta

Limitation of Actions Act, 1970 because the cause of action arose with the enactment of section

35 of the Constitution, the Federal Court judge failed to apply this binding Supreme Court

jurisprudence.

Application of Lameman and Wewaykum in other courts

[218] Other courts have applied prescription periods to both Aboriginal and treaty right claims.

[219] Peepeekisis arose in a similar factual and legal context to the case at bar. There, Treaty 4

granted the band an entitlement to land based on a formula as in Treaty 7. The band sued for an

asserted deficiency in the land accorded under the formula. The breach of treaty claim and

breach of fiduciary duty claim were caught by the Saskatchewan limitations legislation

(Limitation of Actions Act, paragraph 3(1)(j)) of which applied to “any other action not in this

Act or any other Act specifically provided for”. The Saskatchewan statute mirrors that of the

Alberta Limitation of Actions Act, 1970, in issue here and also in Wewaykum (at para. 131). In

finding the action barred by the prescription period, Mainville J.A. applied Lameman and

Wewaykum, noting that as limitation periods apply to a claim from the discovery of the material

facts underlying it, the claim was barred by statutory limitation periods (at para. 52).

Page: 73

[220] In Samson First Nation v. Canada, 2015 FC 836 (sub nom. Buffalo v. Canada, 2016 FCA

223 (lv to appeal denied [2016] S.C.C.A. No. 473), the Federal Court applied Wewaykum, noting

that “limitations legislation, as well as the principles of laches and acquiescence, are applicable

to claims against Canada even where the rights at stake are constitutionally-protected treaty and

Aboriginal rights” (at para. 112). The Federal Court rejected arguments that limitation periods

could not run against actions to enforce constitutionally protected treaty rights, noting that, in

effect, the plaintiffs were arguing for a constitutionally protected right to commence litigation

whenever it was convenient or advantageous to do so, effectively asserting an immunity from

limitation periods (at para. 240).

[221] The argument that a limitation period extinguishes the treaty right has a fundamental

flaw; limitation periods speak only to when a right might be enforced. The point was also made

by Russell J. in Samson at para. 129:

Samson’s second argument is that the application of a limitation period

effectively expunges or infringes constitutionally-enshrined Aboriginal and treaty

rights. In my view, Samson is simply asking the Court to ignore clear authorities

that tell us that limitation periods do not expunge rights, they bar remedies based

upon those rights. As Chippewas, above, makes clear, the seeking of a remedy is

not an Aboriginal or treaty right, and limitations periods merely bar the remedy.

Samson ignores the line of cases that makes a distinction between substantive and

procedural law in the context of limitations and relies upon Tolofson, above, a

conflict of law case, for the motion now before the Court where we have an

established line of authority on point, where the Supreme Court of Canada has

told us that limitation periods do apply to this kind of case. [Emphasis added]

[222] In Goodswimmer v. Canada (A.G.), 2017 ABCA 365, 418 D.L.R. (4th) 157 the Alberta

Court of Appeal relied on Wewaykum and Lameman to conclude that limitation periods applied

to bar a claim which sought to re-ligate a dispute over land entitlement under Treaty 8. As in this

Page: 74

case, the claim had a long history of negotiation, and in 1990 the Band entered into a Treaty

Land Entitlement Settlement Agreement with Canada resolving, apparently, the issue. But in

1997 the appellants commenced an action for breach of the settlement and breach of the Treaty.

[223] Canada and Alberta responded saying that the claims in the action had been previously

settled and were, in any event, statute barred. While the Court dismissed the claim on the basis

that the matter had been settled, it commented on the applicability of the limitations provision in

so far as it applied to bar the claim based on the terms of the Treaty:

The primarily relevant claims are the claims that existed prior to the 1987 action

being commenced, and prior to the Treaty Land Entitlement Settlement

Agreement being entered into in 1990. On the face of it, any such claims have

long since been barred by the passage of time. The facts that made those claims

discoverable were well known at the time that the Treaty Land Entitlement

Settlement Agreement was negotiated.

Even claims that arise out of the Treaty Land Entitlement Settlement Agreement

itself, such as alleged irregularities in the negotiations or with the referendum

process, occurred seven years before the Statement of Claim was issued (at paras.

113-114).

[224] The Alberta Court of Appeal also observed that limitation periods can extinguish claims

with a constitutional or Charter basis, citing the Supreme Court’s decisions in Kingstreet

Investments Ltd. v. New Brunswick (Department of Finance), 2007 SCC 1, [2007] 1 S.C.R. 3 at

para. 59 and Ravndahl at paras. 16-17. In considering the underlying policy objectives served by

limitations legislation, the Court noted that the longer the passage of time, the higher the chance

that vested rights will be disturbed, with collateral affect on the legal interests of third parties.

The Court also considered the application of Manitoba Metis and concluded that limitation

periods could not be finessed by asking for a declaration and then describing any remedial relief

Page: 75

as being ancillary to that declaration, noting that a court should be hesitant to grant declaratory

relief about past grievances for which remedial relief is now barred by the passage of time.

Discretion to waive

[225] The Blood Tribe argued before the Federal Court, and renewed its argument before us,

that there exists a discretion to waive the limitation period. The judge rejected this argument, and

correctly so (Reasons at para. 396).

[226] The jurisprudential underpinning of this argument is Manitoba Metis and the discussion

of the Supreme Court that many of the policy rationales that justify limitation periods do not

have the same resonance in the context of Aboriginal claims.

[227] Manitoba Metis dealt with a failure by government to implement section 31 of the

Manitoba Act, a constitutional instrument. The Court stressed the unique nature of the grievance,

noting that the failure to implement section 31 created an “ongoing rift in the national fabric” and

unless remedied “constitutional harmony” would remain unachieved, as the matter was “of

national and constitutional import” (at para. 140). At paragraph 143 of Manitoba Metis the Court

noted that the Métis “seek no personal relief and make no claim for damages or for land. Nor do

they seek restoration of the title their descendants might have inherited had the Crown acted

honorably” (at para. 137). The relief sought was purely declaratory to assist in extra-judicial

negotiation and no third party interests were engaged (at para. 142).

Page: 76

[228] This case stands in marked contrast to Manitoba Metis. As the Federal Court judge noted,

“Manitoba Métis dealt with a very different matter than that before this Court in this action”

(Reasons at para. 399). I agree with his conclusion that Manitoba Metis does not stand for the

proposition that limitations may be waived in a claim where the plaintiff seeks land or damages

in lieu, as it does here.

[229] I do not understand Manitoba Metis to be establishing a new doctrine of law allowing

judges to waive limitation periods, or for the Supreme Court to be departing from its prior

jurisprudence by implication. To the contrary, in Manitoba Metis, the Supreme Court confirms

the application of Lameman (at para. 138). A court would be on very uncertain, if not arbitrary

ground, if it appropriated to itself the authority to override the clear choice of Parliament in

respect of prescription legislation. If the discretion to waive existed, how would it be exercised?

How would claims that were filed three years late, as here, be distinguished from claims that are

13 or 30 years too late? While reconciliation is the over-arching objective, and serves as the lens

through which judges are to view the law, it does not allow a court to disregard the law

expressed by the Legislatures or Parliament. However meritorious the objective may be (Canada

(Attorney General) v. Utah, 2020 FCA 224), judges cannot skew their reasons to avoid binding

jurisprudence.

Conclusion

[230] The basis of the Federal Court’s reasoning is that as treaties are not contracts, no remedy

for breach of a treaty would be recognized in a Canadian court. While the narrow parsing of the

law and statement of claim conducted in the Federal Court produced a result that fulfilled the

Page: 77

TLE commitment, did so at the expense of coherence in the law. It was also rails against the

foundational principle which motivates all Crown-Aboriginal jurisprudence – the honour of the

Crown.

[231] By 1983, with the decision in Guerin, the common law had evolved to recognize

Aboriginal rights to an underlying title to land; in contrast, the Federal Court decision holds that,

at the same point in the evolution of Canadian jurisprudence, the common law did not recognize,

or give effect to the solemn commitment to give land in a treaty. This was not how Aboriginal

jurisprudence has evolved; to the contrary, while there was doubt, ambiguity and lack of legal

recognition in respect of Aboriginal rights, the readiness of the courts to supply a remedy for the

breach of a treaty has never been in doubt. Pointedly, the Blood Tribe has not identified a single

case where an action to enforce a treaty commitment, unencumbered by legislative restriction,

has been dismissed on the basis that treaties are not enforceable. A claim might fail on its facts,

but not on the basis treaties are not unenforceable.

[232] The honour of the Crown is the motivating principle of Aboriginal jurisprudence and

compels the conclusion that the treaties were intended to create enforceable legal obligations.

While the honour of the Crown is not a cause of action in and of itself, the doctrine frames, and

largely answers the question of whether treaties created legally enforceable obligations. As fully

explained in Manitoba Metis at para. 79, the relationship between the honour of the Crown and

treaty commitments is deep and intertwined:

This duty has arisen largely in the treaty context, where the Crown’s honour is

pledged to diligently carrying out its promises: Mikisew Cree First Nation, at

para. 51; Little Salmon, at para. 12; see also Haida Nation, at para. 19. In its most

basic iteration, the law assumes that the Crown always intends to fulfill its solemn

Page: 78

promises, including constitutional obligations: Badger; Haida Nation, at para. 20.

At a minimum, sharp dealing is not permitted: Badger. Or, as this Court put it in

Mikisew Cree First Nation, “the honour of the Crown [is] pledged to the

fulfilment of its obligations to the Indians”: para. 51. But the duty goes further: if

the honour of the Crown is pledged to the fulfillment of its obligations, it follows

then that the honour of the Crown requires the Crown to endeavour to ensure its

obligations are fulfilled.

[233] It is self-evident that the position of the Blood Tribe is inconsistent with the position

taken by other Aboriginal bands in prior cases where it was been argued that the terms of a treaty

were enforceable. The Blood Tribe is unquestionably entitled to take that position, but a trial

judge is obligated to follow the jurisprudence. The Federal Court may have been motivated by a

perception of unfairness in the result, prompting it to reach the conclusion that it did. While this

is understandable, remedying an injustice in this case creates a broader injustice, one which

requires the Court to reject the well established principle that the honour of the Crown compels

compliance.

[234] There are circumstances, and this is one of them, where the law itself cannot provide the

needed reconciliation. A court does not have a discretion to deem treaty rights enforceable or not

depending on how it perceives the equities of a case. As Binnie J. observed in R. v. Marshall,

[1999] 3 S.C.R. 533 (at para. 45), it would be plainly wrong to deny a valid claim (in that case to

an Aboriginal right) simply because the outcome might be troublesome to others. The converse

is necessarily true – it is required by the integrity of judicial reasoning.

[235] The result, in this case, does not foreclose remedies to the Blood Tribe. There exists an

alternative effective recourse for giving effect to the honour of the Crown and advancing the goal

of reconciliation. Parliament established the Specific Claims Tribunal through the Specific

Page: 79

Claims Tribunal Act, S.C. 2008, c. 22. This Tribunal is designed to address historical treaty

grievances. The Blood Tribe claim for the TLE would not face a limitations issue in that

Tribunal. Section 14 of the Specific Claims Tribunal Act provides that:

In deciding the issue of the validity of a specific claim, the Tribunal shall not

consider any rule or doctrine that would have the effect of limiting claims or

prescribing rights against the Crown because of the passage of time or delay.

[236] For these reasons I would allow the appeal with costs. I would vary paragraph 3 of the

Judgment of the Federal Court to delete the words “other than the Treaty Land Entitlement claim

arising from Canada's breach of Treaty 7”.

“Donald J. Rennie”

J.A.

“I agree.

Richard Boivin J.A.”

“I agree.

Judith Woods J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

A-329-19

DOCKET:

HER MAJESTY THE QUEEN v.

JIM SHOT BOTH SIDES ET AL.

STYLE OF CAUSE:

HEARD BY ONLINE VIDEO

CONFERENCE HOSTED BY

THE REGISTRY

PLACE OF HEARING:

APRIL 13 AND 14, 2021

RENNIE J.A.

DATE OF HEARING:

REASONS FOR JUDGMENT BY:

CONCURRED IN BY:

BOIVIN J.A.

WOODS J.A.

FEBRUARY 10, 2022

DATED:

APPEARANCES:

Bruce Hughson / Amy Martin-LeBlanc /

Marianne Panenka

FOR THE APPELLANT

Eugene Meehan, Q.C. / Thomas Slade

Gary A. Befus / Joanne F. Crook / Paul Reid

Brendan M. Miller

FOR THE RESPONDENTS

SOLICITORS OF RECORD:

A. François Daigle

FOR THE APPELLANT

Deputy Attorney General of Canada

Supreme Advocacy LLP

Ottawa, Ontario

FOR THE RESPONDENTS

Walsh LLP

Calgary, Alberta

Foster LLP

Calgary, Alberta