July 9, 2019
Case Summary: Jim Shot Both Sides v Canada, 2019 FC 789
After nearly forty years of litigation, the Blood Tribe has won a major victory in its land claim against the federal government. On June 12, 2019, the Federal Court found that Canada breached its treaty obligation when it set aside a reserve in 1883 that was 162.5 square miles smaller than that to which the Blood Tribe was entitled under Treaty 7. The Blood Tribe was entitled to a reserve equal to 710 square miles in area, but the current reserve encompasses only 547.5 square miles (the “TLE Claim”).
The Blood Tribe also sought to add lands between the St. Mary and Kootenay River south to the Canada-U.S. Border to its reserve (the “Big Claim”).
The Blood Tribe is a member of the Blackfoot Confederacy. The Blood Tribe Reserve No. 148 (the “Blood Reserve”) is the largest reserve in Canada, stretching 1,420 square miles across southern Alberta. It is located from the confluence of the St. Mary and Belly Rivers in the north east and extends southward to the Canada-U.S. border, north of Cardston, Alberta.
On September 22, 1877, the Crown and the Nations making up the Blackfoot Confederacy - the Stoney, the Blood, and the Sarcee - entered into Treaty 7. Under the terms of Treaty 7, the Blood Tribe would receive one square mile of reserve land for each five members of the Band. This is known as their Treaty Land Entitlement (“TLE”).
Under the terms of Treaty 7, a joint reserve would be set aside for the Blood Tribe, the Blackfoot, and the Sarcee along the Bow River. The Blood Tribe did not move to the joint reserve at Bow River. Instead, on September 25, 1880, the Blood Tribe entered into the Red Crow Agreement with Canada. The agreement provided that the Blood Tribe would give up all rights to the lands described in Treaty 7, “provided the Government will grant us a Reserve on the Belly River in the neighborhood of the Mouth of the Kootenai River”. In 1883, the Blood Tribe surrendered its portion of the joint reserve at Bow River as described in Treaty 7 in exchange for a reserve near Fort Kipp.
There were two surveys done of the Blood Tribe reserve. The first survey was completed in 1882 and marked out a 650 square mile reserve located between the Belly and St. Mary Rivers, with the southern boundary located nine miles north of the U.S. border. The second survey in 1883 moved the southern boundary of the reserve farther north, reducing the size of the reserve to the present size of 547.5 square miles.
The Blood Tribe first filed the Big Claim in the Federal Court in 1980. The Claim was held in abeyance while the Blood Tribe pursued alternate dispute resolution. In 1996, the Blood Tribe filed the Claim under the Specific Claims Policy of the Department of Indian Affairs and Northern Development. In 2003, Canada rejected the Claim for negotiation and stated that Canada owed no outstanding lawful obligation with respect to the Claim. Following Canada’s decision, the Blood Tribe requested that the Indian Claims Commission (“ICC”) conduct an inquiry into the rejected Claim. In 2007, the ICC found Canada should negotiate part of the Big Claim. The findings and recommendations of the ICC are not binding on Canada. The Blood Tribe ultimately brought the action to the Federal Court in 2009 after exhausting attempts to resolve the Big Claim outside of court.
Position of the Parties
The Blood Tribe argued that its current reserve is much smaller than to which it is entitled to receive under the terms of Treaty 7. It advanced three arguments to alter the boundaries of the reserve.
First, the Blood Tribe advanced the Big Claim, which would extend the current reserve west to the former Kootenay River (now Waterton River) and south to the Canada-U.S. border. It also includes Cardston and a part of Waterton Lakes National Park. The Blood Tribe argued that it was never its understanding or intent that the Big Claim lands were given up at the time of Treaty 7.
In the alternative, the Blood Tribe claimed that the 1882 survey established a reserve and the reduction of 102.5 square miles of land by the 1883 survey was contrary to section 28 of the 1880 Indian Act, because no surrender was obtained from the Blood Tribe.
In the further alternative, the Blood Tribe argued that Canada breached its treaty and fiduciary obligation under Treaty 7 when it failed to provide the Blood Tribe with a reserve equal to one square mile of land for every family of five as promised under Treaty 7.
Canada took the position that even if the Blood Tribe’s allegations are proven, they are time barred by virtue of the Limitations Act. Canada argued that the 1882 survey did not create a reserve because it was only a preliminary survey. Instead Canada claimed that the 1883 survey established the reserve and meets TLE requirements. As a result, no surrender was required to alter the boundaries described in the 1882 survey to that in the 1883 survey.
The Big Claim
The Federal Court held that the Blood Tribe had not proven the Big Claim on a balance of probabilities. The Court found that the conduct of the Blood Tribe and Canada showed that neither intended to establish a reserve in the lands described in the Big Claim. First, including the lands from the Big Claim would result in a reserve that would be much larger than that to which the Blood Tribe was entitled under Treaty 7 and there was no evidence to suggest why Canada would favour a much larger allocation. Second, there was no evidence that Canada or the Blood Tribe took any steps to set apart lands described in the Big Claim for a reserve. The Court further found that there was evidence that members of the Blood Tribe were removed from the land between the Belly River and the Kootenai River in 1881 because Canada said it was not part of their reserve. In addition, the Court found no evidence that Canada ever set apart the land south to the Canada-U.S. border as a reserve for the Blood Tribe. Finally, none of the four factors relating to reserve creation identified in Lac La Ronge were met with respect to the Big Claim land.
On the issue of the date of reserve creation, the Federal Court agreed with the Blood Tribe’s alternative argument, holding the reserve was created by the 1882 survey.
Breach of Fiduciary Duty
The Court held that Canada breached its fiduciary duty to the Blood Tribe in failing to deliver on its obligations under Treaty 7 and in its subsequent dealings with the Band after the creation of the Blood Reserve in 1882. In 1882, Canada set aside a reserve of 650 square miles, which appears to be based on the Blood Tribe population of 3,250. The Court found that the population of the Blood Tribe at the time of Treaty 7 was actually 3,550 members, entitling the Blood Tribe to a reserve of 710 square miles. Canada shortchanged the Blood Tribe by 162.5 square miles. The Court held that Canada’s failure to set aside a reserve of 710 square miles constitutes a breach of its treaty obligation.
Following the creation of the reserve in 1882, Canada had a fiduciary duty to protect and preserve the reserve set aside. The Court found that Canada failed in that duty by leasing part of the reserve to third parties under grazing leases and by subsequently moving the southern boundary of the reserve so that there would not be an overlap between the reserve and the leased land. Since the reserve was created in 1882, the Court held that a surrender was required to move the boundary of the reserve as laid out in the 1883 survey. No surrender was ever obtained from the Blood Tribe.
The Court further found that Canada breached its fiduciary duty to the Blood Tribe in 1888 when officials told the Blood Tribe that the reserve as laid out by the 1883 survey gave it a larger reserve than that to which it was entitled under Treaty 7.
The Court concluded that Canada breached its treaty obligation to set aside a reserve to satisfy the Blood Tribe’s TLE under Treaty 7.
Application of Limitation Periods
The Federal Court held that the following claims of the Blood Tribe were time barred by virtue of the Alberta Limitations of Actions Act, 1970:
According to the Court, these claims were time barred because the Blood Tribe knew or ought reasonably to have discovered the material facts underlying the claims well before the action was commenced in 1980. As a result, the claims were dismissed.
Turning to the TLE Claim, the Federal Court held that the claim was not actionable before section 35 of The Constitution Act, 1982 came into force, which recognized and affirmed existing Aboriginal and treaty rights. Prior to 1982, First Nations could not bring claims against the Crown for breach of treaty outside of the statutory scheme of the Indian Act. There was no provision in the Indian Act to permit a First Nation to bring an action against the Crown to enforce the TLE terms of a treaty. The Court found that the limitation period cannot begin to run until April 17, 1982, because treaty breaches were not actionable until s. 35 of the Constitution Act, 1982 came into effect. Accordingly, the Court held that the TLE Claim is not time-barred.
The government has until July 12, 2019, to appeal the decision to the Federal Court of Appeal. If there is no appeal, the Court will next consider the issue of compensation in relation to the TLE Claim.
To read the full decision, click here