Canada has shot itself in the foot many times when it comes to reconciliation. The Assembly of Manitoba Chiefs (AMC), who intervened in Jim Shot Both Sides v. Canada with RAVEN’s support, believes this is one of those times.
The Supreme Court of Canada heard the case in the fall that stands to set a precedent about how Nations can hold Canada to account for land that has been promised but not received.
With the Jim Shot Both Sides case, the court will be releasing a decision on whether or not the Kainai Nation can receive proper compensation for reserve lands that were stolen by Canada, or if they have to go through a system that caps their compensation.
Limiting Justice
Jim Shot Both Sides v. Canada was first brought to the courts over promised reserve land that Canada took from the Kainai Nation after the reserve-making process in Treaty 7. Canada and the Kainai Nation established a 1,418 square kilometre reserve. But, during the Treaty-making process, the Nation was promised much more land than was allocated. The Kainai Nation filed a claim in 1971, which was held in abeyance for decades before resurfacing in the legal system.
Through the Federal Court of Appeal, Canada has successfully argued that the Kainai Nation’s case seeking remedy for the stolen reserve land breaches the limitations period of the claim. Under Alberta’s law, you have six years to begin working on a claim after you have filed it. Since the Kainai Nation’s claim to stolen reserve land was in abeyance in 1971, Canada argued the claim is “time-barred,” meaning the time to move it forward has expired and cannot be pursued in court. The Federal Court of Appeal agreed with Canada, and told the Kainai Nation they could submit a claim through the Specific Claims Tribunal as a way to receive compensation for their promised land being stolen. This Tribunal was developed to address claims from Indigenous Nations including those that may fall outside of Alberta’s limitations period.
There’s a big problem here. The Specific Claims Process limits the ways in which First Nations receive financial compensation for breaches of the Treaties with Canada. There’s a financial cap of $150 million dollars when receiving compensation through the Specific Claims Tribunal, which is orders of magnitude less than what the Kainai Nation’s additional reserve land would be worth today. The Tribunal does not award punitive or exemplary damages, nor does it award damages for cultural loss of First Nations; it also cannot order the return of land.
The Kainai Nation has successfully appealed the Federal Court of Appeal’s decision, arguing that, since Treaty cases could not be brought to the courts before 1982 — when protection of Treaty and Aboriginal rights was infused into Canada’s Constitution — their case should now be able to move through the court system. Rather than settle for the limited compensation available under the Specific Claims process, Kainai brought their case to the Supreme Court of Canada in October 2023. Now, it’s up to the court to decide, once and for all, if First Nations will have to abide by the limitations period when seeking remedy for Treaty disputes.
This case is vitally important for Treaty rights. It is unjust for Nations to be pigeon-holed by Canada’s limited compensation regime. To deal fairly with past injustices, Nations like Kainia must be able to exercise their sovereignty as equal Treaty partners in their pursuit for proper compensation.
The Assembly is Picking a Side
Supported by RAVEN, the Assembly of Manitoba Chiefs was granted status to Intervene in Jim Shot Both Sides v. Canada. The AMC represents 62 First Nations from Treaties 1, 2, 3, 4, 5, 6, and 10. The Dakota Nations, who signed a pre-confederacy Treaty, are also a part of the AMC.
As Intervenors, the AMC is asking the court to recognize that Nation to Nation relationships between First Nations and the Crown must be taken into account and allowed to override the limitations period. The AMC presented their arguments at the Supreme Court of Canada in order to influence the decision, and present new evidence in support of the Kainai Nation’s case. The AMC write in their factum:
[p.8] “This Court has recognized that Treaties are unique… [they] represent “a solemn exchange of promises made by the Crown and various First Nations.” Yet Court statements on the uniqueness or importance of Treaty fail to advance reconciliation unless and until existing jurisprudence is made to accommodate the centrality and enduring nature of Treaty. Reconciliation demands carving out space for Treaty-based claims to adequately protect Treaty rights and provide meaningful redress for their violation…” [p.9] …The application of statutes of limitations to Treaty-based claims can only be sustained if First Nations laws and the Nation to Nation Treaty relationship are disregarded. The AMC submits that the constitutional imperative of reconciliation requires that statutes of limitation be inapplicable to Treaty-based claims.”At the heart of AMC’s argument is that the Crown is forcing First Nations to play by its rules. The Crown is hiding behind the limitations period — technical policy that has prevented the Kainai Nation from getting proper remedy for land theft. The Specific Claims Tribunal was put in place for First Nations to avoid having to go to court to settle Treaty disputes with Canada and its provinces. But now, instead of providing a mechanism for fair play, it is forcing First Nations into an impossible binary: either settle for less compensation than they deserve, or claw their way through the legal system with cases like Jim Shot Both Sides v. Canada to prove they do deserve proper compensation for past injustices.
All of this runs contrary to the original intent of the Treaties, which was to establish co-jurisdiction between First Nations and the Crown on all Treaty lands. This, and nothing less, needs to become the status-quo before meaningful reconciliation can occur in Canada.
To conclude their written factum, the AMC say,
[p.21] “The ongoing ability of the Crown to exercise unchecked discretion in fulfilling its Treaty promises, coupled with the Crown’s legislative initiatives that obstruct reconciliation, further entrenches injustices against First Nations… This Honourable Court’s decision must reflect the fact that Treaties were negotiated on a Nation to Nation basis and are founded upon solemn trust and sacred promises.”Hopefully, with help from the Assembly of Manitoba Chiefs and 10 other Indigenous Nations and organizations who are also acting as Intervenors in Jim Shot Both Sides, the Supreme Court of Canada will recognize the imperatives of reconciliation and uphold their Treaty relationship with the Kainai Nation, so that they — all other Treaty Nations — can get the compensation for injustices by the Crown. The matter was heard by the SCC in October 2023: as supporters of AMC’s intervention, the RAVEN community eagerly awaits a decision on this case and will keep our eyes peeled to share the notice of the outcome when it appears.
Learn more about RAVEN’s intervenor fund, and donate to support it here.
