This month we had the privilege of representing the Treaty 8 First Nations of Alberta in their intervention in the Jim Shot Both Sides appeal at the Supreme Court of Canada.
As we outlined in our earlier post, 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.
Below is a summary of the points raised in our submissions at the Supreme Court. The full hearing can be viewed here.
Submissions of the Treaty 8 First Nations of Alberta
The Treaty 8 First Nations of Alberta submit that limitations legislation should never be used to frustrate the fulfilment of the Crown’s treaty obligations.
Courts should adopt a contextual approach to the interpretation and application of limitations legislation in treaty claims.
Treaty claims relate to the sacred promises made by the Crown to its First Nation treaty partners.
Claims based on historic breach of treaty arise in the context of colonization, including Crown policies designed, expressly or implicitly, to dispossess First Nations of their lands, cultures and laws. They are distinct from other disputes between private litigants.
Considering this context is critical if treaty claims are to be resolved in a manner which advances reconciliation and upholds the honour of the Crown.
Failing to take this context into account risks leaving these historic wrongs outstanding and unaddressed before the case is considered on its merits.
When asked to interpret and apply limitations legislation in a treaty claim, courts should be directed to consider:
- the significance and unique nature of treaties between the Crown and First Nations;
- the Crown’s obligation to act honourably in the implementation of its treaty promises; and
- the ongoing impacts of Crown policies and actions which have functioned to prevent First Nations from initiating legal action or otherwise enforcing the Crown’s treaty obligations.
Limitations legislation must not frustrate the fulfilment of the Crown’s treaty obligations.
Treaties are sacred, constitutionally protected agreements.
The mutual promises which they contain are to be honoured and upheld so long as the sun rises and the river flows.
The Crown should not be allowed to sidestep its obligations to its treaty partners based on a strict or technical interpretation of limitations legislation.
This Court should affirm that when limitations are raised as a defence in treaty claims, courts should apply principles of treaty and statutory interpretation which provide that:
- doubtful or ambiguous expressions be resolved in favour of First Nations; and
- any limitations on the rights of First Nations are to be narrowly construed.
In all cases, courts should interpret and apply limitations legislation in treaty claims in a manner which upholds the sacred and enduring nature of the Crown’s treaty promises.
Limitations legislation should not be interpreted or applied in a manner which renders treaty rights unenforceable.
The objective of reconciliation requires that First Nations have access to effective, enforceable remedies to address historic treaty breaches.
In the context of Canada’s colonial history, it should not be assumed that the Crown will rectify its past wrongs if the First Nation has no ability to obtain coercive remedies from the court.
Courts are the guardians of the Constitution. They must protect its substance and uphold its promises. This includes playing an active role in reconciliation.
This Court should confirm that:
- declaratory relief does not represent an adequate substitute for enforceable judicial remedies for claims based on historic treaty breaches; and
- limitations legislation should not be applied in a manner which leaves First Nations unable to obtain meaningful relief for breaches of the Crown’s treaty promises.
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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