Blood Tribe ‘Big Claim’ time-barred, but Supreme Court provides declaration in Crown’s ‘dishonourable’ conduct

Monday, April 15th, 2024 12:15pm


Image Caption

Supreme Court of Canada Judge Michelle O'Bonsawin
By Deb Steel
With files from Shari Narine

The Supreme Court of Canada has helped to restore the honour of the Crown by issuing a declaration in the Blood Tribe’s ‘Big Claim’ on April 12.

The claim asserts that Canada shorted the Blood Tribe, located in southern Alberta, 162.5 square miles of reserve land promised at the time Treaty 7 was made in 1877.

The Supreme Court was tasked with deciding whether the ‘Big Claim’ was “actionable in Canadian courts” or if it was time-barred under a provincial six-year statute of limitations. The tribe first came to have information that supported its claim in 1971 but didn’t begin legal action until January 1980.

The decision in the ‘Big Claim’ case, known officially as Shot Both Sides v. Canada, was unanimous and written by Justice Michelle O’Bonsawin, the only Indigenous judge seated on Canada’s top court.

The Supreme Court ruled the ‘Big Claim’ is statute-barred, but that “declaratory relief is warranted given the longevity and magnitude of the Crown’s dishonorable conduct.”

Before it finally got to the courts in 2016, the Blood Tribe had attempted to resolve the claim with Canada through other means. The legal action sat in abeyance as the Blood Tribe attempted to negotiate through the Specific Claims Policy and through the Indian Claims Commission. Canada rejected those efforts.

Once in the courts, the trial judge ruled that Canada was in breach of the Treaty Land Entitlement (TLE) formula and the claim was not time-barred by Alberta’s six-year limitation statute because the claim could not have been brought prior to the passage of sect. 35 of the Constitution Act, 1982, which recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada.

Canada appealed the decision of the lower court.

The Appeals Court ruled that Canada’s obligations to fulfill the Crown’s treaty promises existed, but were enforceable by law prior to 1982, so the Blood Tribe was time-barred from proceeding with the claim.

The Blood Tribe appealed to the Supreme Court, which has ruled that treaty rights flow from the treaty, not from Canada’s 1982 Constitution.

“Section 35(1) of the Constitution Act, 1982 did not create a cause of action for breach of treaty rights,” O’Bonsawin explained.

“Treaties are enforceable upon execution and give rise to actionable duties under the common law,” a summary of the decision reads. As the breach was “discoverable as early as 1971” and “the action was not commenced until 1980”, the claim “is statute-barred by operation of the applicable six-year limitation period.”

But the Supreme Court justices seemed to agree with the trial judge on something, who said the Crown’s conduct was “unconscionable”.

The Blood Tribe and the Crown “have been involved in a contentious and adversarial litigation process culminating in an appeal to this Court, not an “academic”, “hypothetical”, or “theoretical” dispute,” the Supreme Court decision reads.

A declaration would “serve an important role in clarifying the Blood Tribe’s TLE, identifying the Crown’s dishonourable conduct, assisting future reconciliation efforts, and helping to restore the honour of the Crown.”

The Blood Tribe is entitled to the following declaration, reads the decision.

  • Under the treaty land entitlement provisions of Treaty No. 7, the Blood Tribe was entitled to a reserve equal to 710 square miles in area;
  • The Blood Tribe’s current reserve is 162.5 square miles smaller in area than what was promised in Treaty No. 7; and
  • Canada, having provided the Blood Tribe with a reserve of 547.5 square miles in area, dishonourably breached the treaty land entitlement provisions of Treaty No. 7.

The Blood Tribe was also awarded their costs of the litigation throughout the various stages of the court proceedings.

A statement released by the Blood Tribe after the decision reads:

“Now that the Supreme Court of Canada has provided its ruling the Blood Tribe Council will review all of its option to ensure that the promises made at the time of the Blackfoot Treaty of 1877 are met and that the government of Canada lives up to its obligations. This includes continuing to negotiate with Specific Claims Canada outside of the $150 million cap.”

The Supreme Court decision can be read here Shot Both Sides v. Canada - SCC Cases (