Jim Shot Both Sides, et al. v. His Majesty the King
(Federal) (Civil) (By Leave)
Aboriginal law - Treaty rights, Limitation of actions - Aboriginal law — Treaty rights — Treaty 7 — Limitation of actions — Breach of treaty as cause of action —Whether breach of treaty was actionable in Canadian courts prior to the coming into force of s. 35 of the Constitution Act, 1982 — Whether limitation periods for breach of treaty claims began to run prior to the passage of s. 35 — Limitation of Actions Act, R.S.A. 1970, c. 209; Federal Courts Act, R.S.C. 1985, c. F-7
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On September 22, 1877, the Blackfoot Confederacy and the Crown executed Treaty 7, which established Reserve No. 148, the largest reserve in Canada. It is the home of the Kainai, or Blood Tribe. Under the Treaty, the size of the reserve was to be established through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families”. The Blood Tribe has long claimed that the actual size of its reserve did not accord with that promised by the Treaty and, in 1980, commenced an action in the Federal Court.
For decades the action sat in abeyance. In 2016, the court held phase I of the trial of the action, for the purpose of receiving oral history evidence from aging members of the Blood Tribe. Phase II commenced in 2018 to hear fact and expert witness evidence, and to make a determination on liability.
At the completion of phase II, the trial judge found that the Blood Tribe’s claims were discoverable more than six years before the action was commenced in 1980 and, with the exception of a claim for breach of treaty, were therefore time-barred through the operation of The Limitation of Actions Act, R.S.A. 1970, c. 209 and s. 39 of the Federal Courts Act, R.S.C. 1985, c. F-7.
The trial judge held that an action for breach of a treaty commitment could not be pursued in a Canadian court prior to the advent of s. 35 of the Constitution Act, 1982. Therefore, for the purposes of the limitations statute, time for a breach of treaty claim only began to run in 1982.
The trial judge found that Canada was in breach of its treaty commitment, and that the size of the Reserve was understated by 162.5 square miles. The Crown appealed. The Federal Court of Appeal allowed the appeal and varied the Federal Court’s judgment to state that all claims of the Blood Tribe were time-barred.
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