What it’s about
The Supreme Court of Canada will decide whether First Nations can be barred from bringing claims based on breaches of the Crown’s treaty obligations under provincial limitation periods.
The Blood Tribe brought an action against Canada for failure to set aside reserve lands as promised under Treaty 7.
The claim was started after the regular 6-year limitation period in Alberta had expired. A limitation period refers to the time limit for starting a new legal claim in court. If a claim is started after the time limit has expired, the court cannot hear the claim, regardless of how strong it is.
The Federal Court held that the Blood Tribe could still proceed with the claim because treaty rights couldn’t be enforced under Canadian law until the enactment of the Constitution Act, 1982.
The Federal Court of Appeal disagreed. The Court held that Canada’s obligations to fulfil the Crown’s treaty promises existed and were enforceable at law prior to 1982.
As a result, the Blood Tribe was barred from proceeding with the claim because it had been started after the expiration of the provincial limitation period. The Blood Tribe appealed to the Supreme Court.
Why it’s important
The Supreme Court’s decision will affect the ability of First Nations across the country to seek redress for breaches of the Crown’s treaty obligations.
If the Supreme Court upholds the Court of Appeal decision, First Nations may be barred from filing treaty-based claims if the claim could have been “discovered” prior to 1982. First Nations might still pursue these claims at the Specific Claims Tribunal. However, the relief available at the Tribunal is more limited than in court.
What happens next?
The Supreme Court will set a schedule for the hearing, including deadlines for First Nations to apply to participate as intervenors in the appeal. The appeal will likely be heard later in 2023 or early 2024.
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First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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Tyler Swan is a lawyer at First Peoples Law LLP
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