To quote the esteemed Dr. Darcy Lindberg:

“As long as the grass grows, the sun shines, and the rivers flow….and it’s within a limitation period” ~ Supreme Court of Canada proverb

It turns out that Canada is willing to let the clock run out on some of the promises it makes. 

You may remember we recently posted a blog about this case, discussing how our Intervenor Fund was used to assist the Assembly of Manitoba Chiefs in intervening. Well, we now have a decision from the Supreme Court of Canada (SCC).

This case has been 53 years in the making. In 1971, it was confirmed that based on the formula in Treaty 7’s Treaty land entitlement provisions the Kainai Nation, or Blood Tribe, was allocated insufficient reserve land. An action was started in 1980 before being paused while assessment was done under the Specific Claims Policy. 

When the matter went before the courts in Alberta,the limitation period became a concern. The limitation period which applied in Alberta was 6 years. A limitation period refers to the time limit one has to start a claim in court after discovering the issue. In other words, one you discover you have a claim that you could bring in court, a clock starts running and when it expires, you can no longer take that claim to court. 

While the court at trial found that the Kainai Nation could still bring their claim, the Alberta Court of Appeal decided that time had expired. The trial court had found that s. 35 of the Constitution, passed in 1982, had created a new cause of action, one which had not expired. The Court of Appeal found that s. 35 did not create a new cause of action, and therefore time had expired.

The SCC agreed with the Court of Appeal, but also did grant declaratory relief to the Kainai Nation. Declaratory relief refers to declarations made regarding the law, status of parties or other issues of the litigation. It does not change the status of things, nor provide financial damages, but it provides clarity and can be relied on as a precedent. 

The declarations in this case were the following:

Under the treaty land entitlement provisions of Treaty No. 7, the Blood Tribe was entitled to a reserve equal to 710 square miles in area;

The Blood Tribe’s current reserve is 162.5 square miles smaller in area than what was promised in Treaty No. 7; and

Canada, having provided the Blood Tribe with a reserve of 547.5 square miles in area, dishonourably breached the treaty land entitlement provisions of Treaty No. 7.

So while the Kainai Nation did not receive the results they intended, the SCC did advise the world that Canada had acted dishonourably, and that they were entitled to more than they were given. 

The Assembly of Manitoba Chiefs (AMC), with the support of our Intervenor Fund, made arguments before the Court which focused on the importance of Treaties and the need to respect the Nation-to-Nation relationship. 

In the emphasis the Court gave to reconciliation and the need for Canada to not act unchecked, and to act honourably, it seems likely the Court benefitted from the arguments of AMC and other intervenors on these points.