2022 FCA 20, 2022 FCA 20

A-329-19 2022 FCA 20 Her Majesty the Queen ( Appellant ) v. Jim Shot Both Sides and Roy Fox, Charles Fox, Steven Fox, Theresa Fox, Lester Tailfeathers, Gilbert Eagle Bear, Phillip Mistaken Chief, Pete Standing Alone, Rose Yellow Feet, Rufus Goodstriker, and Leslie Healy, Councillors of the Blood Band, for themselves and on behalf of the Indians of Blood Band Reserve Number 148; and the Blood Reserve Number 148 ( Respondents ) Indexed as: Canada v. Jim Shot Both Sides Federal Court of Appeal, Boivin, Rennie and Woods JJ.A.—By videoconference, April 13 and 14, 2021; Ottawa, February 10, 2022.

Indigenous Peoples — Lands — Appeal from Federal Court decision allowing in part action in which Blood Tribe (respondents) asserted that Canada (appellant) breached its obligations both under terms of Treaty No. 7 and as fiduciary — Respondents long claiming that size of reserve not according with that promised by Treaty — Sought declarations to that effect, order directing that Canada procure lands from province of Alberta for addition to Reserve, monetary compensation for lost use, mineral royalties, rents since 1877 — Blackfoot Confederacy, Crown executed Treaty 7 on September 22, 1877 — Treaty established Blood Tribe Reserve No. 148 — Appeal raised single question whether terms of Treaty No. 7 were enforceable in Canadian court prior to coming into force of Constitution Act, 1982, s. 35 — Entitlement, or not, of Blood Tribe to 162.5 square miles of land in south-western Alberta pivoted on answer to this question — While Federal Court finding that appellant in breach of commitment, in the result, found that treaty land entitlement (TLE) claim was barred by Alberta’s Limitation of Actions Act , ss. 5(1) (e),(g), Federal Courts Act , s. 39(1) — Combined, these provisions required respondents to bring their claim within six years of its discoverability date — Since claim discoverable in 1971, action commenced in 1980, appellants barred by prescription period — Federal Court also holding that action for breach of treaty commitment could not be pursued in Canadian court before 1982; that treaties not contracts and since action pled in contract, no cause of action existed — Federal Court also adopted act of state doctrine — Determined that since Treaty No. 7 not incorporated into Canadian law, was not enforceable in Canadian courts — However, Federal Court went on to find this changed with advent of Constitution Act, 1982, s. 35 , that time only began to run in 1982, action not barred — Whether Federal Court right in concluding as it did — Federal Court erred in deciding whether treaties enforceable through lens of public international law principles, applying act of state doctrine — No support in case law on either side of expiry of limitation period for proposition that historic treaties engage act of state doctrine, require incorporation into domestic law to be enforceable — Federal Court’s conclusion that no cause of action could be brought in respect of breach of treaty right prior to 1982 was inconsistent with established case law, academic commentary — Also inconsistent with honour of Crown, basic tenant of Aboriginal law in Canada — Canadian case law recognizing enforceability of treaty terms — Federal Court judge erred in concluding that because treaties not contracts, they were not enforceable — Treaties more than contracts — Judge erred in not distinguishing between Aboriginal, treaty rights; in conflating, merging two streams of law — Specific obligation in Treaty No. 7 at issue here not governed by political trust doctrine — Fact that concept of Aboriginal title achieved recognition at common law by 1983 reinforced conclusion that choate, precise treaty rights such as TLE claim in issue were enforceable on expiry of limitation period — Federal Court also erring in finding that Indian Act statutory impediment to suit to enforce treaty — Political trust doctrine applicable to Aboriginal rights could not be transposed into law of treaties; not applying to question whether treaty right enforceable — Enforceability of treaty rights not depending on discretionary political trust — Respondents’ argument before Federal Court that there exists discretion to waive limitation rejected and correctly so — While reconciliation is over-arching objective, it does not allow court to disregard law expressed by Legislatures or Parliament — Result in present case not foreclosing remedies to respondents — Alternative effective recourse existing for giving effect to honour of Crown, advancing goal of reconciliation — Appeal allowed.

Constitutional Law — Aboriginal and Treaty Rights — Appeal from Federal Court decision allowing in part action in which Blood Tribe (respondents) asserted that Canada (appellant) breached its obligations both under terms of Treaty No. 7 and as fiduciary — Respondents long claiming that size of reserve not according with that promised by Treaty — Sought declarations to that effect, order directing that Canada procure lands from province of Alberta for addition to Reserve, monetary compensation for lost use, mineral royalties, rents since 1877 — Appeal raised single question whether terms of Treaty No. 7 enforceable in Canadian court prior to coming into force of Constitution Act, 1982, s. 35 — Federal Court found that appellant was in breach of its Treaty commitment — Constitution Act, 1982, s. 35 recognizing prior occupation of Canada by organized, autonomous societies; seeks to reconcile their modern-day existence with Crown’s sovereignty over them —

Section 35 must be read with Canadian Charter of Rights and Freedoms, s. 25(

a) which guarantees that Charter will not abrogate or derogate from any “aboriginal, treaty or other rights” —- Subsection 35(1) not source of treaty rights — Treaty rights flow from treaty, not Constitution — Scope of s. 35 requires, in each case, inquiry into whether treaty right was existing as of April 17, 1982 — Also, s. 35 not resuscitating previously barred actions — Respondents had cause of action prior to enactment of s. 35(1), limitation period for breach of Treaty No. 7 began to run before enactment of s. 35. — Also, limitation periods have been consistently applied to treaty claims regardless of whether they arose before or after 1982 — Federal Court’s understanding of s. 35 could not be reconciled with relevant case law.

Practice — Preliminary Determination of Question of Law — Appeals, cross-appeals — Motion for leave to file reply memorandum — Appeal from Federal Court decision allowing in part action in which Blood Tribe (respondents) asserted that Canada (appellant) breached its obligations both under terms of Treaty No. 7 and as fiduciary — Respondents claimed that size of reserve not according with that promised by Treaty — Sought declarations to that effect, order directing that Canada procure lands from province of Alberta for addition to Reserve, monetary compensation for lost use, mineral royalties, rents since 1877 — Preliminary issue arising as to whether to accept appellant’s motion for leave to file reply memorandum — Appellant’s motion prompted by what appellant asserted was respondents’ attempt to raise new issues that were not considered by trial judge, to reverse judgment of Federal Court respecting separate, legally distinct issues from those raised by notice of appeal — Appellant asserted that respondents were recasting their case, that notice of cross-appeal required; respondents contended that no cross-appeal required since not seeking different disposition or judgment than that under appeal — Notice of cross-appeal must be filed when different disposition of decision under appeal sought — Arguments that respondents advanced were alternative arguments — Notice of cross-appeal required where alternative argument is

made in support not of judgment appealed from but of claim for different judgment or where alternative argument or new angle would result in different judgment — General rule is that Court will not hear ground of appeal that was not raised in notice of appeal or cross- appeal — Respondents were advancing alternative argument as basis for upholding judgement; therefore no notice of cross-appeal required — Respondent cannot use discretion to raise any argument in support of decision challenged on appeal as justification to unwind other parts of judgment in which notice of cross-appeal should have been filed — Both respondents’ memoranda on appeal, in reply to motion leaving no doubt that there was only one issue on appeal — Respondents’ memorandum within guardrails of issues as framed by notice of appeal — Crown’s motion for leave to file reply granted but only to extent it responded to political trust issue advanced by respondents.

Practice — Limitation of Actions — Appeal from Federal Court decision allowing in part action in which Blood Tribe (respondents) asserted that Canada (appellant) breached its obligations both under terms of Treaty No. 7 and as fiduciary — Crux of respondents’ position was that claim for breach of treaty land entitlement (TLE) term of Treaty No. 7 only became actionable with enactment of Constitution Act, 1982, s. 35(1) — Respondents submitted that in enshrining existing treaty rights into Constitution Act, new cause of action was created, with result that limitation period only began to run with enactment of s. 35(1) — Such argument found favour with Federal Court judge — However, this reasoning was flawed — Limitation periods have been consistently applied to treaty claims regardless of whether they arose before or after 1982 — Also, respondents’ argument before Federal Court that there exists discretion to waive limitation period rejected, correctly so — Court would be on very uncertain, if not arbitrary ground, if it appropriated to itself authority to override clear choice of Parliament in respect of prescription legislation — While reconciliation is over-arching objective, it does not allow court to disregard law expressed by Legislatures or Parliament.

This was an appeal from a Federal Court decision allowing in part an action in which the Blood Tribe (respondents) asserted that Canada (appellant) breached its obligations both under the terms of Treaty No. 7 and as a fiduciary. The respondents have long claimed that the size of the reserve did not accord with that promised by the Treaty. They sought declarations to that effect, an order directing that Canada procure lands from the province of Alberta for addition to the Reserve and monetary compensation for lost use, mineral royalties and rents since 1877.

The Blackfoot Confederacy and the Crown executed Treaty 7 on September 22, 1877. The Treaty established Blood Tribe Reserve No. 148. Encompassing 547.5 square miles, it is the largest reserve in Canada and home of the Kainai, or Blood Tribe. The appeal raised the single question whether the terms of Treaty No. 7 were enforceable in a Canadian court prior to the coming into force of

section 35 of the Constitution Act, 1982 . The entitlement or not of the Blood Tribe to 162.5 square miles of land in south-western Alberta pivoted on the answer to this question. Treaty No. 7 established the size of the reserve through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families”. The Federal Court found that the appellant was in breach of its Treaty commitment.

The size of the reserve was understated by 162.5 square miles.The Federal Court also found that the breach of the treaty land entitlement (TLE) was discoverable as early as 1971. It rejected all allegations of concealment, lulling or deception on the part of Canada, finding that they were not established in the evidence. In the result, the TLE claim was barred by paragraphs 5(1) (

e) and (

g) of Alberta’s Limitation of Actions Act and subsection 39(1) of the Federal Courts Act . Combined, these provisions required the respondents to bring their claim within six years of its discoverability date. As the claim was discoverable in 1971 and the action not commenced until 1980, the appellants were barred by the prescription period . The Federal Court also held that an action for breach of a treaty commitment could not be pursued in a Canadian court prior to 1982.

It reasoned that as treaties are not contracts and as the 1980 action was pled in contract, no cause of action existed by which the respondents could have enforced the Treaty commitment. The Federal Court adopted the act of state doctrine, a principle of international law that provides that, unless incorporated into a domestic law, treaties are not enforceable in national courts. It reasoned that there is nothing in the Indian Act permitting a First Nation to bring an action to enforce the TLE under a Treaty. As Treaty No. 7 was not incorporated into Canadian law, it was not enforceable in Canadian courts.

In the judge’s opinion, this changed on April 17, 1982, with the advent of

section 35 of the Constitution Act, 1982 . Therefore, for the purposes of the Alberta Limitation of Actions Act , 1970 , time only began to run in 1982. In effect, the Federal Court found that the respondents had commenced an action before it had a cause of action. The Attorney General appealed, contending that a cause of action for breach of a treaty right existed at common law prior to 1982 and that the Federal Court misunderstood the law in this regard.

The respondents claimed that the Federal Court made no error, that Treaties did not create enforceable obligations and that they were unenforceable in the absence of legislative ratification. They submitted that they had no recourse or remedy for the breach of their treaty until 1982 when

section 35 came into force. A preliminary issue arose as to whether to accept the appellant`s motion for leave to file a reply memorandum. The main issue was whether the Federal Court was right in concluding as it did. Held , the appeal should be allowed. The motion was prompted by what the appellant asserted was an attempt by the respondents to raise new issues that were not considered by the trial judge and to reverse the judgment of the Federal Court with respect to separate and legally distinct issues from those raised by the notice of appeal.

The appellant asserted that the respondents were recasting their case, putting it on a different basis than they did at trial and that a notice of cross-appeal was required. In response, the respondents contended that no cross-appeal was required, as they were not seeking a different disposition or judgment than that under appeal. A notice of cross-appeal must be filed when a different disposition of the decision under appeal is sought. The arguments that the respondents advanced were alternative arguments.

A notice of cross-appeal is required where the alternative argument is made in support not of the judgment appealed from but of a claim for a different judgment or, where the alternative argument, or the new angle would result in a different judgment, a notice of cross-appeal is required. The general rule is that the Court will not hear a ground of appeal that was not raised in the notice of appeal or cross-appeal. A new issue on appeal is one that is factually and legally distinct from those raised at trial.

The test as to whether it should be entertained is stringent and the onus is on the party seeking to raise the issue to establish that the court can hear the issue without prejudice. The respondents were advancing an alternative argument as a basis for upholding the judgment and, therefore, no notice of cross-appeal was required. It had to be determined whether a new argument should be heard on appeal. The political trust doctrine was not advanced at trial and not considered by the Federal Court. It was a new argument and the respondents made no attempt to link the argument to the reasons of the Federal Court.

The second argument objected to was whether the

Indian Act is a complete code, which ousts the common law right of Aboriginal Canadians to sue. This was a new argument, one which required much more than what was put before the Court to be considered. None of this was argued at trial and the argument was not developed in any way here. A respondent cannot use its discretion to raise “any argument” in support of a decision challenged on appeal as justification to unwind other parts of the judgment in respect of which a notice of cross-appeal ought to have been filed.

In those circumstances, fairness requires that notice of that intention be signaled early in the form of a notice of cross-appeal. Both the respondents’ memoranda on appeal and in reply to the motion were examined and left no doubt that there was only one issue on appeal. In oral argument, counsel for the respondents did not stray outside the issues as framed by the notice of appeal or seek a different outcome other than the dismissal of the appeal. Therefore, the respondents’ memorandum was within the guardrails of the issues as framed by the notice of appeal.

The Crown’s motion to file a reply was granted but only to the extent that it responded to the political trust issue. The Federal Court concluded that the historic treaties were international treaties. Even if the judge stopped short of finding that the treaties were international agreements, he erred in deciding the question of whether they were enforceable through the lens of public international law principles and applying the act of state doctrine. The cases relied on did not support the conclusion reached by the Federal Court. The judge adopted substantive principles of international law.

To be precise, the judge applied the act of state doctrine, a substantive component of international law, to Treaty No. 7. The doctrine holds that unless domestic legislation provides a right of recourse, municipal or domestic courts do not have the competence to consider treaties between two foreign and sovereign countries.

There was no support in the case law on either side of the expiry of the limitation period for the proposition that the historic treaties engage the act of state doctrine and require incorporation into domestic law to be enforceable.Moreover, the policy rationale that underlies the act of state doctrine is incompatible with the fundamental constructs of the Canadian constitutional framework which establishes, through sections 96 and 101 of the Constitution Act, 1867 , the role of the judiciary in the Canadian federation.

Prior to 1982, unless incorporated into law, treaties could not displace or override federal legislation. The judge inverted this principle and established a new one—that a treaty was not enforceable in the absence of parliamentary ratification—and erred in so doing. The conclusion of the Federal Court that no cause of action could be brought in respect of a breach of treaty right prior to 1982 was inconsistent with established case law and academic commentary. It was also inconsistent with the basic tenant underpinning all Aboriginal law in Canada—the honour of the Crown.

Neither were displaced by the fact that the action was framed in contract. Three errors underlied the Federal Court’s conclusion. First, Canadian case law recognizes the enforceability of treaty terms. Although the judge was correct to note the Supreme Court has said that treaties are not contracts, he erred in concluding that, because they are not contracts, they were not enforceable. Treaties are more than contracts, not less.

Second, the judge erred in discounting case law that established the enforceability of treaties on the basis that the treaty rights were used defensively and not on a positive basis to assert a treaty right. Third, Aboriginal rights and treaty rights are not the same. While treaty rights are encompassed within the broader concept of Aboriginal rights and now have co-extensive constitutional protection, their provenance and scope are different.

Prior to 1982, they were conceptually, historically and jurisprudentially different, and the fact that an action to enforce an Aboriginal right may not have been recognized prior to 1982 does not mean that a treaty right would suffer the same fate. Conflating or merging the two streams of law, one addressing Aboriginal rights, the other addressing treaty rights, is an error. Treaty rights are different from Aboriginal rights. Furthermore, the specific obligation in Treaty No. 7 that was at issue was not governed by the political trust doctrine.

A treaty right, while held by Indigenous peoples, stems from an agreement between Aboriginal Canadians and the Crown.Treaties “are analogous to contracts, albeit of a very solemn and special, public nature”. What had to be determined was whether a court would have given legal effect to Treaty No. 7 on the eve of the expiry of the limitation period pursuant to the Alberta Limitations of Actions Act, 1970 . To answer that question, a review of the case law both before 1982 and after was made.

This review established that a treaty right in the nature of the TLE commitment in Treaty No. 7 would have been enforceable prior to 1982. By 1983, the existence of Aboriginal title rights were unquestionably enforceable. The fact that the concept of Aboriginal title achieved recognition at common law by 1983 reinforced the conclusion that choate, precise treaty rights such as the TLE claim in issue were enforceable on the expiry of the limitation period. Case law that followed the limitation date confirmed the conclusion that Treaties create enforceable obligations.

The guidance of the Supreme Court has been consistent.Canadian courts have been agnostic to how treaties are legally classified and as to the means or “form” by which their terms are enforced. Treaties have evolved from “solemn agreements” to “contracts”, to instruments protected from provincial encroachment to sui generis agreements, to constitutionally protected agreements. Regardless of the label applied, there is a unifying theme that treaty rights are legally enforceable.

The Federal Court erred when it concluded that because the Supreme Court has said treaties “are not contracts” that an action pled in contract for breach of the TLE term was not cognizable. Regarding statutory authority to sue, the Federal Court judge offered a third reason for concluding that there was no right of action at common law to sue on a treaty. He found that the Indian Act was a statutory impediment to a suit to enforce a treaty. After reviewing

section 88 of the Indian Act , the judge concluded that it contained nothing that allowed a First Nation to bring an action to enforce the TLE under a Treaty. Absent a legislative authority to sue, there was no ability by a band to enforce a treaty. This conclusion could not be sustained. There has never been a requirement that the Indian Act permit or grant an authority to sue to enforce a treaty and this was not the effect of

section 88 of the Indian Act . The conclusion reached by the Federal Court was also inconsistent with the presumption of statutory

interpretation that, absent express language, legislation does not intend to interfere with or displace common law rights. Furthermore, the argument advanced was, presumptively, offensive of

section 15 of the Canadian Charter of Rights and Freedoms . Courts are to eschew

interpretations that offend the Charter . The respondents bolstered the judge’s conclusion that treaties were unenforceable by reference to “the political trust” doctrine, a view for a period of time in the evolution of Crown/Indigenous case law that the Crown’s obligations in respect of Indigenous Canadians were viewed as political and not legal obligations. The doctrine, they submitted, supported the conclusion that treaty rights, as opposed to Aboriginal rights, were unenforceable as of the expiry of the limitation period. However, this was not so.

The doctrine, applicable to Aboriginal rights, could not be transported into the law of treaties. The political trust doctrine does not apply to the question of whether a treaty right is enforceable. Where the political rights doctrine is applicable, however, is in respect of Aboriginal rights. The enforceability of treaty rights does not depend on a discretionary political trust. The application of the political trust doctrine in the context of a treaty claim was previously rejected by the Federal Court of Appeal.

Section 35 of the Constitution Act, 1982 , recognizes the prior occupation of Canada by organized, autonomous societies and seeks to reconcile their modern-day existence with the Crown’s sovereignty over them.

Section 35 must be read with

section 25(

a) of the Canadian Charter of Rights and Freedoms , which guarantees that the Charter will not abrogate or derogate from any “aboriginal, treaty

or other rights”, including “any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.” The crux of the respondents’ position was that the claim for breach of the TLE term of Treaty No. 7 only became actionable with the enactment of subsection 35(1) . They submitted that in enshrining existing treaty rights into the Constitution Act, 1982 , a new cause of action was created, with the result that the limitation period only began to run with the enactment of subsection 35(1) . This argument found favour with the Federal Court judge. However, this reasoning was flawed.

Limitation periods have been consistently applied to treaty claims regardless of whether they arose before or after 1982. Subsection 35(1) is not the source of treaty rights. Treaty rights flow from the treaty, not the Constitution. By its express and unambiguous terms, the scope of

section 35 requires, in each case, an inquiry into whether the treaty right was existing as of April 17, 1982. Not all treaty rights were given protection as of that date. Also,

section 35 did not resuscitate previously barred actions. The respondents had a cause of action prior to the enactment of subsection 35(1) and the limitation period for breach of Treaty No. 7 began to run before the enactment of

section 35. The Federal Court’s understanding of

section 35 could not be reconciled with the relevant case law. The respondents’ argument before the Federal Court that there exists a discretion to waive the limitation was rejected and correctly so. A court would be on very uncertain, if not arbitrary ground, if it appropriated to itself the authority to override the clear choice of Parliament in respect of prescription legislation. While reconciliation is the over-arching objective, it does not allow a court to disregard the law expressed by the Legislatures or Parliament.

In conclusion, the honour of the Crown is the motivating principle of Aboriginal case law and compels the conclusion that the treaties were intended to create enforceable legal obligations. While the honour of the Crown is not a cause of action in and of itself, the doctrine frames, and largely answers the question of whether treaties created legally enforceable obligations. There are circumstances, and this was one of them, where the law itself cannot provide the needed reconciliation.

A court does not have a discretion to deem treaty rights enforceable or not depending on how it perceives the equities of a case. The result, in this case, did not foreclose remedies to the respondents. There existed an alternative effective recourse for giving effect to the honour of the Crown and advancing the goal of reconciliation. Parliament established the Specific Claims Tribunal through the Specific Claims Tribunal Act . This Tribunal is designed to address historical treaty grievances. The respondents’ claim for the TLE would not face a limitations issue in that Tribunal.

STATUTES AND REGULATIONS CITED Alberta Act (The) , 1905, 4-5 Edw. VII, c. 3 (Canada) [R.S.C. 1970, Appendix II, No. 19], s. 16. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15 , 25 (a). Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91(24), 109, 146. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 35, 96 , 101 . Convention between His Britannic Majesty and the United States of America , signed at London, October 20, 1818, Art. II Federal Court Act , S.C. 1970, I-2, C. 1. Federal Courts Act , R.S.C., 1985, c. F-7, s. 39(1) . Fisheries Act , R.S.C., 1985, c. F-14 . Indian Act , R.S.C., 1985, c. I-5, ss. 31(3) , 88 . Lands and Forests Act , R.S.N.S. 1967, c. 163, s. 150(1). Limitation of Actions Act (The) , R.S.A. 1970, c. 209, ss. 3(1) (j), 5(1) (e)(g). Manitoba Act, 1870 , S.C. 1870, c. 3 (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 2) [R.S.C., 1985, Appendix II, No. 8], s. 31. Natural Resources Transfer Agreement (Alberta), confirmed by the Constitution Act, 1930 , 20 & 21 Geo. V, c. 26 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 16) [R.S.C., 1985, Appendix II, No. 26]. North-West Territories Act , R.S.C. 1886, c. 50, s. 11. Ontario Fishery Regulations , SOR/2007-237 . Petition of Right Act, 1876 (The), S.C. 1876, c. 27, ss. 2, 3, 19(3), 21. Petition of Right Act, Canada, 1875 (The), S.C. 1875, c. 27. Royal Proclamation, 1763 (The) , R.S.C., 1985, Appendix II, No. 1. Rupert’s Land and North - Western Territory Order (1870) (U.K.) [R.S.C. 1985, App. II, No. 9]. Specific Claims Tribunal Act , S.C. 2008, c. 22, s. 19 . Supreme Court and Exchequer Court Act , S.C. 1875, c. 11, s. 58. Supreme Court and Exchequer Court Act , R.S.C. 1886, c. 135, s. 73(2).

The Exchequer Court Act, 50-51 Vict. c. 16, s. 15. The Treaty of Waitangi Act 1975 (1975 No. 114). Wildlife Act, S.A. 1984, c. W-9.1. TREATIES AND OTHER INSTRUMENTS CITED Jay Treaty (1794). Robinson-Huron Treaty (1850). Treaty No. 3 (1873). Treaty No. 6 (1876). Treaty No. 7 (1877). Treaty No. 8 (1899). Treaty No. 20 (1818). Treaty of Waitangi (1840). CASES CITED FOLLOWED: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372. NOT FOLLOWED: R. v. Syliboy (1928), [1929] 1 D.L.R. 307, (N.S. S.C.). APPLIED: R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385; R. v.

Badger, (SCC), [1996] 1S.C.R. 771, 133 D.L.R. (4th) 324; R. v. Van der Peet, [1996] 2 S.C.R. 507, ; The Province of Ontario v. The Dominionof Canada and the Province of Quebec (1895), 25 S.C.R. 434, 1895 CanLII 112 affd Canada (Attorney General) v. Ontario (AttorneyGeneral), [1897] A.C. 199, 1896 CarswellNat 44; Henry v. R., (CA EXC), 1905 CarswellNat 19, 9 Ex. C.R. 417; R. v.White and Bob (1964), (BC CA), 50 D.L.R. (2d) 613, 52 W.W.R. 193, aff’d [1965] S.C.R. vi (note), (SCC), 52 D.L.R. (2d) 481; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456, 177 D.L.R. (4th) 513; Wewaykum Indian Bandv.

Canada, 2002 SCC 79, [2002] 4 S.C.R. 245. DISTINGUISHED: Hoani Te Heuheu Tukino v. Aotea District Maori Land Board, [1941] UKPC 6 (BAILII), 1941 A.C. 308 (P.C.); Ravndahl v.Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Francis v. The Queen, [1956] S.C.R. 618, ; Nayak VajesingjiJoravarsingji and others v. The Secretary of State for India in Council, [1924] UKPC 51 (BAILII),

(1924) L.R. 51 Ind. App. 357 (P.C.). CONSIDERED: R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, [1999] 2 C.N.L.R. 289; First Nation of Nacho Nyak Dun v. Yukon, 2017SCC 58, [2017] 2 S.C.R. 576; Miller Thomson LLP v. Hilton Worldwide Holding LLP, 2019 FCA 156, 306 A.C.W.S. (3d) 10; ManitobaMetis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; R. v. Agawa, , 65 O.R. (2d)505, 53 D.L.R. (4th) 101; Simon v. The Queen, [1985] 2 S.C.R. 387, ; R. v. Horse, [1988] 1 S.C.R. 187, ;R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427; Calder et al. v.

Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313, 34 D.L.R. (3d) 145; Pawis v. R., (FC), [1980] 2 F.C. 18; Hay River (Townof) v. R., (FC), [1980] 1 F.C. 262, 101 D.L.R. (3d) 184; R. v. Secretary of State for Foreign and CommonwealthAffairs, [1982] 2 All E.R. 118, (1982), 1982 WL 221742; R. v. Desautel, 2021 SCC 17, 456 D.L.R. (4th) 1; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321, revg (FCA), [1983] 2 F.C. 656, 143 D.L.R. (3d) 416; R.v. Taylor, (ON CA), 34 O.R. (2d) 360, 1981 CarswellOnt 641; Dreaver v. The King (1935), 5 C.N.L.C. 92 (Ex. Ct.);Baker Lake (Hamlet) v.

Minister of Indian Affairs & Northern Development, (FC), [1980] 1 F.C. 518, 107 D.L.R. (3d)513; St. Catharines Milling & Lumber co. v. R., [1888] U.K.P.C. 70, 1888 CarswellOnt 22, affg (1887), 1887 CanLII 3 (SCC), 13 S.C.R.577, 13 O.A.R. 148; R. v. Wesley, [1932] 4 D.L.R. 774, (A.B. C.A.); R. v. Dennis, 56 D.L.R. (3d) 379, ; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; Roberts v. Canada, [1989] 1 S.C.R. 322, ; Fairford FirstNation v. Canada (Attorney General), (FC), [1999] 2 F.C. 48, 1998 CarswellNat 2201 (T.D.); Apsassin v.

Canada, (FC), [1988] 3 F.C. 20, 1987 CarswellNat 229; Peepeekisis First Nation v. Canada, 2013 FCA 191, [2014] 1 F.C.R.D-2, 448 N.R. 202; Samson First Nation v. Canada, 2015 FC 836, affd sub nom. Buffalo v. Canada, 2016 FCA 223, leave to appeal toS.C.C. refused, [2017] 1 S.C.R. viii; Goodswimmer v. Canada (Attorney General), 2017 ABCA 365, 418 D.L.R. (4th) 157; R. v.Marshall, (SCC), [1999] 3 S.C.R. 533. REFERRED TO: The Secretary of State for India v. Kamachee Baye Sahaba, [1859] UKPC 19 (BAILII), [1859] E.R. 836; Les Plastiques Algar (Canada)

Ltée v. Canada (Minister of National Revenue), 2004 FCA 152, sub nom. Kligman v. M.N.R., [2004] 4 F.C.R. 477; Smith v. St. Albert(City), 2014 ABCA 76, 569 A.R. 363, 370 D.L.R. (4th) 514; Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712; Guindon v. Canada,2015 SCC 41, [2015] 3 S.C.R. 3; Eli Lilly Canada Inc. v. Teva Canada Limited, 2018 FCA 53, 292 A.C.W.S. (3d) 146; R. v. Mian, 2014SCC 54, [2014] 2 S.C.R. 689; Cook v. Sprigg, [1899] UKPC 61, [1899] A.C. 572; R. v. Nikal, (SCC), [1996] 1 S.C.R.1013, 133 D.L.R. (4th) 658; R. v.

Moses, (ON SC), [1970] 3 O.R. 314, (1969), 13 D.L.R. (3d) 50; Papaschase IndianBand (Descendants of) v. Canada (Attorney General), 2004 ABQB 655, 365 A.R. 1, [2004] 4 C.N.L.R. 110; Re Nathan (1884), 12Q.B.D. 461; Ontario (Attorney General) v. Bear Island Foundation, (SCC), [1991] 2 S.C.R. 570; Campbell v. BritishColumbia (Attorney General), 2000 BCSC 1123, 189 D.L.R. (4th) 333 (B.C.S.C); Delgamuukw v. British Columbia, [1997] 3 S.C.R.1010, ; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130,[2021] 1 F.C.R. 53, 448 D.L.R. (4th) 714; Semiahmoo Indian Band v.

Canada, (FCA), [1998] 1 F.C. 3, 148 D.L.R.(4th) 523; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Canada (Attorney General) v. Utah,2020 FCA 224, 455 D.L.R. (4th) 714. AUTHORS CITED: Borrows, John and Leonard Rotman. “The Sui Generis Nature of Aboriginal Rights” (1997), 36:1 Alta. L. Rev. 9. Canada. Dept. of Indian Affairs and Northern Development. Statement of the Government of Canada on Indian Policy, 1969. Ottawa,1969. Grammond, Sébastien. Terms of Coexistence: Indigenous People and Canadian Law, Toronto: Carswell, 2013. Hogg, Peter W.

Constitutional Law of Canada, 5th ed. Vol. 2, Scarborough, Ont.: Thomson/Carswell, 2007. Hudson’s Bay Company. The Royal Charter for Incorporating the Hudson’s Bay Company: Granted by His Majesty the King Charlesthe Second, in the Twenty-Second Year of His Reign, A.D. 1670. London: H.K. Causton, 1865. MacKenzie, N.A.M. “Indians and Treaties in Law” (1929), 7 Can. Bar Rev. 561. Mainville, Robert. An Overview of Aboriginal and Treaty Rights and Compensation for Their Breach. Saskatoon: Purich Publishing,2001.

Oliver, Peter, Patrick Macklem and Nathalie Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution. New York: OxfordUniversity Press, 2017, 1031. Pentney, William F. The Aboriginal Rights Provisions in the Constitution Act, 1982. Saskatoon: University of Saskatchewan Native LawCenter, 1987. Sanders, Douglas. “Pre-existing Rights: The Aboriginal Peoples of Canada” in Gérald-A. Beaudoin & Ed Ratushy, eds., The CanadianCharter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989. Slattery, Brian. “Making Sense of Aboriginal and Treaty Rights” (2000), 79 Can. Bar Rev. 196. Sullivan, Ruth. Statutory

Interpretation, 3rd ed. Toronto: Irwin Law 2016. APPEAL from a Federal Court decision (2019 FC 789, [2020] 1 F.C.R. 22) allowing in part an action in which the Blood Tribe assertedthat Canada breached its obligations both under the terms of Treaty No. 7 and as a fiduciary. Appeal allowed. APPEARANCES Bruce Hughson, Amy Martin-LeBlanc and Marianne Panenka for appellant. Eugene Meehan, Q.C., Thomas Slade, Gary A. Befus, Joanne F. Crook, Paul Reid and Brendan M. Miller for respondents. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant.

Supreme Advocacy LLP, Ottawa, Walsh LLP, Calgary, and Foster LLP, Calgary, for respondents. The following are the reasons for judgment rendered in English by Rennie J.A.: Table of Contents Paragraph I. Introduction Overview The historical context Preliminary issue

II. Treaties and the act of state doctrine Supreme Court of Canada decisions Jurisprudence prevailing on the expiry of the limitation period Decisions relied on by the Federal Court

(1) R. v. Agawa

(2) Francis v. The Queen

(3) Vajesingji

(4) Hoani III. Whether the terms of Treaty No. 7 were enforceable at common law Overview Treaty rights and Aboriginal rights Governing law Jurisprudence prior to 1982 Post

section 35 jurisprudence Academic commentary Statutory authority to sue The political trust doctrine IV. Section 35(1) of the Constitution Act, 1982 V.

Section 35 of the Constitution Act and limitations legislation Supreme Court of Canada guidance Application of Lameman and Wewaykum in other courts Discretion to waive VI. Conclusion I. Introduction [ Table of Contents ] Overview [ 1 ] This appeal raises the single question whether the terms of Treaty No. 7 were enforceable in a Canadian court prior to the coming into force of

section 35 of the Constitution Act, 1982,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K) [R.S.C., 1985, Appendix II, No. 44] ( Constitution Act, 1982 ). The entitlement, or not, of the Blood Tribe to 162.5 square miles of land in south-western Alberta pivots on the answer to this question. [ 2 ] The Blackfoot Confederacy and the Crown executed Treaty No. 7 on September 22, 1877. The Treaty established Blood Tribe Reserve No. 148.

Encompassing 547.5 square miles, it is the largest reserve in Canada and home of the Kainai, or Blood Tribe. [ 3 ] Treaty No. 7 established the size of the reserve through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families” (Treaty and Supplementary Treaty No. 7, September 22 and December 4, 1877, at page 4, Appendix D of the Decision under appeal, 2019 FC 789 , per Zinn J. [Reasons]).

The Blood Tribe has long claimed that the size of the reserve did not accord with that promised by the Treaty and, in 1980, commenced an action in the Federal Court. The statement of claim asserted that in establishing a reserve less than that provided for by the Treaty, Canada breached its obligations both under the terms of the Treaty and as a fiduciary.

The Blood Tribe sought declarations to that effect, an order directing that Canada procure lands from the province of Alberta for addition to the Reserve and monetary compensation for lost use, mineral royalties and rents since 1877. [ 4 ] For decades the action for the breach of treaty land entitlement (the TLE claim) sat in abeyance.

What transpired during the 40 years before the 1980 action came to trial in the Federal Court in 2019 is not pertinent to the disposition of this appeal; it does, however, provide necessary context and will be discussed later in these reasons. [ 5 ] The Federal Court found that Canada was in breach of its Treaty commitment. The size of the reserve was understated by 162.5 square miles. [ 6 ] The Federal Court also found that the breach of the treaty land entitlement was discoverable as early as 1971.

It rejected all allegations of concealment, lulling or deception on the part of Canada, finding that they were not established in the evidence. In the result, the TLE claim was barred by paragraphs 5(1) (

e) and (

g) of The Limitation of Actions Act , R.S.A. 1970, c. 209 ( The Limitation of

Actions Act, 1970) and subsection 39(1) of the Federal Courts Act, R.S.C., 1985, c. F-7. Combined, these provisions required the BloodTribe to bring its claim within six years of its discoverability date. As the claim was discoverable in 1971 and the action not commenceduntil 1980, it was barred by the prescription period. [7] The judge also held, however, that an action for breach of a treaty commitment could not be pursued in a Canadian court prior to1982. Relying on R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, [1999] 2 C.N.L.R. 289 (Sundown), at paragraph 24 andFirst Nation of Nacho Nyak Dun v.

Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576 (First Nation of Nacho Nyak Dun v. Yukon), at paragraph37, the judge reasoned that as treaties are not contracts and as the 1980 action was pled in contract, no cause of action existed by whichthe Blood Tribe could have enforced the Treaty commitment. [8] After reviewing decisions of the Judicial Committee of the Privy Council (JCPC) in 1899 (Secretary of State for India v.Kamachee Baye Sahaba, [1859] UKPC 19 (BAILII), [1859] E.R. 836) and 1941 (Hoani Te Heuheu Tukino v.

The Aotea District MaoriLand Board, [1941] UKPC 6 (BAILII), 1941 A.C. 308 (P.C.) [Hoani]), the judge adopted the act of state doctrine, a principle ofinternational law that provides that unless incorporated into a domestic law which confers a right of action, treaties are not enforceable innational courts. The judge reasoned that “[t]here is nothing in the Indian Act permitting a First Nation to bring an action to enforce theTLE under a Treaty” (Reasons, at paragraph 500).

As Treaty No. 7 was not incorporated into Canadian law, it was not enforceable inCanadian courts. [9] In the judge’s opinion, this changed on April 17, 1982, with the advent of

section 35 of the Constitution Act,

Section 35created a right to sue: “Canada is the one who created the new cause of action when it enshrined existing treaty rights into the Canadianconstitution” (Reasons, at paragraph 475). Therefore, for the purposes of the Alberta Limitation of Actions Act, 1970, time only began torun in 1982. In effect, the judge found that the Blood Tribe had commenced an action before it had a cause of action. [10] The Attorney General appeals, contending that a cause of action for breach of a treaty right existed at common law prior to 1982,and that the judge misunderstood the law in this regard.

The Attorney General contends that the judge erred in construing the Treaty asan international agreement and relying on the act of state doctrine to require that Treaty No. 7 be ratified by Parliament to be enforceable.Finally, the Attorney General contends that the judge misunderstood the effect of

section 35, arguing that

section 35 did not create a newcause of action, but gave constitutional protection to existing treaty rights. [11] The response of the Blood Tribe, at the highest level, is the judge made no error. Treaties did not create enforceable obligations.Like international treaties, they were unenforceable in the absence of legislative ratification. Treaties were simply political commitmentsdependent on the good grace and will of the Sovereign to respect as it chose. The Blood Tribe had no recourse or remedy for the breachof its treaty until 1982 when

section 35 came into force. The Blood Tribe also relies on the political trust doctrine, a concept in thejurisprudence which holds that Aboriginal rights were not justiciable. [12] I have concluded that there were reversible errors in the reasons given by the Federal Court and that the appeal should beallowed. I reach this conclusion for three reasons. [13] First, the reasons are not consistent with the guidance of the Supreme Court of Canada. The Supreme Court has rejected thecharacterization of treaties as international agreements, as well as the application of international law principles to Canadian law.

TheFederal Court erred in characterizing Treaty No. 7 as if it were an international treaty and applying the act of state doctrine to concludethat its terms were unenforceable in a Canadian court. It was only by ignoring the governing jurisprudence that holds that treaties areenforceable agreements under Canadian law that the judge was able to open the door to the act of state doctrine, a principle of publicinternational law. [14] Second, there is an unbroken line of decisions over 120 years recognizing the enforceability of the commitments made in thenumbered treaties.

This jurisprudence has consistently taught that the numbered treaties created binding obligations, both legal andmoral, on the Crown. Their terms were enforceable in Canadian courts because a foundational, robust legal principle compelledcompliance—the honour of the Crown. The conclusion of the Federal Court renders that principle empty and hollow. [15] The Supreme Court, indeed all courts, have eschewed pigeon-holing treaties and the breach of the commitments made therein,into a particular cause of action.

Indeed, there are two unifying themes across a century of jurisprudence: the first is that the treatiescreated binding legal obligations, and the second is the studied indifference or agnosticism of the courts to the form in which, or themanner by which, a breach of a treaty commitment is framed or pled. [16] The question before the Federal Court was not whether the treaties were contracts—it is clear that they are not—rather thequestion before the Court was whether a court, having found that the land entitlement term of Treaty No. 7 had been breached, couldhave provided a remedy.

The evolution in the language used to describe the nature of treaty obligations or the means of theirenforcement; whether through declaratory actions, breach of contract, breach of treaty or breach of a constitutional obligation, does notchange the question of whether a cause of action exists. While the legal characterization of the treaties has changed, the readiness of thecourts to provide a remedy has not. [17] Third, the judge misunderstood the effect of

section 35 in relation to treaties.

Section 35 did not create new treaty rights—theSupreme Court has settled that question—rather,

section 35 gave constitutional protection to existing treaty rights. The inquiry that oughtto have been undertaken by the Federal Court was to determine whether, as of the eve of the expiry of the limitation period, a Canadiancourt would have provided a remedy at common law for breach of the TLE term. As I will explain, the reasoning of the Federal Courtwith respect to

section 35 also circumvents and nullifies unequivocal jurisprudence of the Supreme Court with respect to limitationslegislation and

section 35. [18] Much of the argument before this Court failed to distinguish between Aboriginal rights and treaty rights. Treaty rights andAboriginal rights are not the same; they differ in provenance and scope, and, importantly for the disposition of the issue in this appeal,when they first came to be recognized in Canadian courts. Any conclusion as to whether a treaty right was enforceable at common law asopposed to whether an Aboriginal right was enforceable at common law must proceed on an understanding of the distinction, prior to1982, between the two. The Federal Court erred in conflating the two.

[ 19 ] The answer to the question as to the enforceability or not of Treaty No. 7 lies much closer to home than an 1859 decision of the JCPC concerning a dispute under an international treaty between Britain and the Raja of Tanjore, then an independent, sovereign state. It is not necessary to look so far afield in circumstances where Canadian courts have considered the question that was before the Federal Court. This jurisprudence, rooted in the common law, the Canadian constitutional framework and now reoriented to the north star of reconciliation, supplies the answer to the question raised in this appeal.

The historical context [ Table of Contents ] [ 20 ] In the ordinary course, I would not trace the procedural history of a case where the issue with which the Court is seized is a question of law. Here, however, an understanding of how the issues between Canada and the Blood Tribe came before the Federal Court provides context and is pertinent to the over-arching objective of reconciliation. [ 21 ] In 1882, five years after execution of the Treaty, surveyors set the boundaries of the Blood Reserve.

The survey described the Blood Reserve as an area of roughly 650 square miles in south-western Alberta, extending north from an east-west line 9 miles north of the Canada-US border. Also in 1882, the Canadian government, by Order in Council, granted two grazing leases on lands south of the reserve.

The northern boundaries of the grazing leases extended 3 miles north of the southern boundary of the reserve lands described in the 1882 survey, overlapping the Blood Tribe’s lands (Reasons, at paragraph 193; see also Appendix G). [ 22 ] The discrepancy in the boundaries between the 1882 survey of Blood Tribe lands and the grazing leases was quickly recognized by Canadian officials.

Although the Surveyor General advised the leases would have to be amended to avoid encroaching on the Blood Tribe lands, the Lieutenant Governor of the North-West Territories, Edgar Dewdney, instead instructed John Nelson, the surveyor who conducted the 1882 survey, to change the boundaries of the Blood Reserve. The terms of Treaty No. 7 provided that the boundaries could be revised by agreement of the Blood Tribe and Canada, and the Blood Tribe was asked to agree to the new boundary. [ 23 ] In 1883 the new boundary agreement was signed by members of the Blood Tribe and the Lieutenant Governor.

It defined the southern boundary of the reserve by a latitudinal description, 49°12’16”. Under the agreement, the southern boundary of the reserve was moved north of the boundaries of the grazing leases, a distance of approximately 5–6 miles. The southern boundary of the reserve was now 14–15 miles north of the international boundary and the overlap with the leases was eliminated.

This change in the southern boundary reduced the size of the Blood Reserve from 650 square miles to its current size of 547.5 square miles. [ 24 ] Five years later, in 1888, members of the Blood Tribe, including its Chief, Red Crow, met with officials of the Indian Department. The Tribe members expressed their view that the size of the reserve was not as large as they had thought it would be when they signed Treaty No. 7.

They also expressed uncertainty and confusion as to the precise location of the southern boundary. [ 25 ] As a result of these discussions, John Nelson, along with Red Crow and other members of the Tribe, travelled to the southern boundary of the Blood Reserve as described in the 1883 agreement. Nelson showed Red Crow and other members of the Blood Tribe the location of the new southern boundary. This was the first time that the members of the Tribe had seen the location of the new boundary. Nelson placed iron posts along the southern boundary of the Blood Reserve, from the south-east corner to south-west corner.

In his report of the visit, Nelson recorded that “Red Crow was asked if he was satisfied, and he answered in the affirmative.” [ 26 ] Nearly a century passed. [ 27 ] On August 5, 1969, Leroy Little Bear, a Blackfoot researcher, presented the Blood Tribe Council a report on the 1882 and 1883 surveys. The report detailed the differences between the 1882 and 1883 surveys and the reduction in the size of the reserve.

The report was made available to all members of the Blood Tribe on November 4, 1969. [ 28 ] Leroy Little Bear then travelled to Ottawa in August 1971 to gather information from the Department of Indian and Northern Affairs as to the total number of people in the Blood Tribe for the years 1879 to 1884. The Department responded within a few days, providing Little Bear information extracted from the yearly annuity payments made to the members of the Tribe for the years 1881 and 1882.

Based on this information, Little Bear confirmed the discrepancy between the size of the reserve owed under the original TLE calculation and existing reserve boundaries. [ 29 ] On February 27, 1976, the Blood Tribe tabled its position that the Treaty had been breached with the Minister of Indian Affairs. In addition to the TLE claim, the Tribe submitted what came to be known as “the Big Claim”, an entitlement to the lands extending south to the US border, west to include Waterton National Park and north to the confluence of the Belly and Waterton Rivers.

Two years later, on June 20, 1978, the Minister rejected both claims. [ 30 ] Having been unsuccessful in their negotiations with the Minister, the Blood Tribe commenced an action in the Federal Court on January 10, 1980. [ 31 ] The statement of claim alleged breaches of Canada’s fiduciary duty arising from the 1883 survey, fraudulent concealment, and negligence. Importantly, it sought a declaration and damages for breach of contract arising from the failure to fulfill the treaty land entitlement (TLE) according to the formulae prescribed by

section 7 of Treaty No. 7: In the alternative, the Plaintiffs claim that the said Treaty Number 7 and the said amendment to Treaty Number 7 entered into on or about the 2nd day of July, A.D. 1883, constitute contracts between the Blood Band and the Defendant.

The Plaintiffs claim that the Defendant, its predecessors in title and agents and/or servants for the time being have committed and continue to commit breaches of the said contracts in that they failed to accurately calculate the size of the said Reserve Number 148 as per the said contract in that the size of the said Reserve 148 did not correspond to previously existing population figures as shown in the 1881 and 1882 Treaty pay lists and was not substantiated by an official census or other accounting taken at the time of the execution of the said amended Treaty or at the time of the 1883 survey. [ 32 ] With the agreement of both the Blood Tribe and Canada, the Federal Court action was put into abeyance pending an assessment under the Specific Claims Policy of the Department of Indian Affairs and Northern Development.

Given the glacial speed with which the

Specific Claim was being addressed by the Department, on August 7, 1996 the Blood Tribe moved to reactivate the Federal Court action, confirming that the action would continue at the same time the Blood Tribe advanced the TLE claim under the Specific Claims Policy. [ 33 ] Three years later, on February 24, 1999, the Blood Tribe amended the 1980 statement of claim to include

section 35 of the Constitution Act, 1982 . The amendment read in part as follows: “[t]he members of the Blood Tribe have Aboriginal and Treaty rights which are constitutionally protected by

section 35 of the Constitution Act, 1982 ” and, “Treaty Number 7 was made between the Blood Tribe and the Defendant as a sacred peace agreement between two Nations.” [ 34 ] In November 2003, the TLE claim was rejected under the Specific Claims Policy on the basis that Canada had no outstanding legal obligation. The Blood Tribe then requested that the Indian Claims Commission (ICC) conduct an inquiry into the claims advanced in the Federal Court action.

The ICC issued its recommendations to the Minister on March 30, 2007; that the Big Claim not be accepted, and, secondly, that as the effect of the 1883 boundary change was to remove lands from a reserve, a surrender was required. It recommended that the Minister negotiate a resolution. [ 35 ] Canada declined to negotiate, and the action proceeded to trial. [ 36 ] The case-managed action was divided into three phases. Phase I was heard on the Blood Reserve in May 2016 for the purpose of receiving oral history evidence from members of the Blood Tribe.

Phase II, dealing with liability, fact and expert witness evidence, was held at the Federal Court in Calgary, 2018. Phase III was to address remedy. Preliminary issue [ Table of Contents ] [ 37 ] Well prior to the hearing of this appeal, the Attorney General filed a motion for leave to file a reply memorandum.

The motion was prompted by what the Attorney General asserted was an attempt by the Blood Tribe to raise new issues that were not considered by the trial judge and to reverse the judgment of the Federal Court with respect to separate and legally distinct issues (and in respect of which the Blood Tribe was unsuccessful) from those raised by the notice of appeal.

The Attorney General asserts that the Blood Tribe is recasting its case, putting it on a different basis than it did at trial and that a notice of cross-appeal was required. [ 38 ] In response, the Blood Tribe contends that no cross-appeal was required, as it does not seek a different disposition or judgment than that under appeal. It argues that a party may offer any reasons in support of the judgment under appeal ( Les Plastiques Algar (Canada) Ltée v. Canada (Minister of National Revenue) , 2004 FCA 152 , sub nom. Kligman v.

M.N.R. , [2004] 4 F.C.R. 477 ) and may provide “a new angle” on the existing issues ( Smith v. St. Albert (City) , 2014 ABCA 76 , 569 A.R. 363, 370 D.L.R. (4th) 514, at paragraph 18 ). It points to portions of the trial record that allude to the arguments which the Blood Tribe now further develops in its memorandum, and says that it is offering additional reasons why the judgment should be maintained. The Blood Tribe states that its arguments are “closely related” to the issue on appeal which is whether a remedy for breach of a treaty existed prior to 1982.

Its defence to the limitation period has not changed, namely as no cause of action existed at common law, the prescription period did not run. Its position, simply put, is that “treaties were not actionable” (Blood Tribe’s reply memorandum on Attorney General’s motion for leave, at paragraphs 21 and 30). [ 39 ] This motion raises both procedural and substantive considerations. [ 40 ] A notice of cross-appeal must be filed when a different disposition of the decision under appeal is sought ( Miller Thomson LLP v. Hilton Worldwide Holding LLP , 2019 FCA 156 , 306 A.C.W.S. (3d) 10 ( Hilton )).

As I will explain, the arguments that the Blood Tribe advance are alternative arguments. A notice of cross-appeal is required “where the alternative argument is made in support not of the judgment appealed from but of a claim for a different judgment” ( Hilton , at paragraph 12), or, where the alternative argument, or the new angle would result in a different judgment, a notice of cross-appeal is required. The general rule is that the Court will not hear a ground of appeal that was not raised in the notice of appeal or cross-appeal.

This ensures that the parties know at an early stage of the appeal what is in issue and can make legal, tactical and policy decisions accordingly. [ 41 ] A new issue on appeal is one that is factually and legally distinct from those raised at trial ( Quan v. Cusson , 2009 SCC 62 , [2009] 3 S.C.R. 712 ( Quan )). The test as to whether it should be entertained is stringent and the onus is on the party seeking to raise the issue to establish that the court can hear the issue without prejudice ( Guindon v. Canada , 2015 SCC 41 , [2015] 3 S.C.R. 3, at paragraphs 22–23 ).

The discretion is to be exercised sparingly and is an exception to the general rule that the Court will not hear grounds of appeal that were not raised in the notice of appeal or cross-appeal. [ 42 ] The Federal Court judge, in thoughtful and thorough reasons, held that limitation periods apply to claims for breach of treaty. In a separate

section of the reasons for judgment, entitled “Application of Provincial Limitation Acts to Treaty and Aboriginal Rights” he concluded, “I reject the submission of the Blood Tribe that provincial limitations legislation can have no application to the claims in this action” (Reasons, at paragraph 392). I note, parenthetically, that the provincial limitation period applies by reason of

section 39 of the Federal Courts Act . [ 43 ] Then, after an exhaustive and detailed review of the evidence, the judge concluded that the Big Claim was discoverable or discovered by 1890, the 1882 reserve claim by 1969 and the TLE claim by 1971. He found that the assertions of lulling, concealment or abuse of process where not made out on the evidence. He then considered, and rejected, the argument that he could, on the basis of Manitoba Metis Federation Inc. v.

Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623 ( Manitoba Metis ) and in furtherance of the objective of reconciliation, waive the limitation period. Consequently, paragraphs 2 and 3 of the judgment read: Canada, having provided the Blood Tribe with a Reserve of 547.5 square miles in area, is in breach of the Treaty Land Entitlement provisions of Treaty No. 7; All claims of the Blood Tribe, other than the Treaty Land Entitlement claim arising from Canada’s breach of Treaty No. 7, are time- barred by operation of The Limitation of Actions Act , R.S.A. 1970, c. 209 , made applicable to this action by

section 38 of the Federal Courts Act , R.S.C., 1985, c. F-7 .

[ 44 ] All claims were statute barred, subject only to the singular question whether an action for breach of treaty could be pursued in a Canadian court prior to 1982. [ 45 ] The Blood Tribe is advancing an alternative argument on a basis for upholding the judgment and, therefore, no notice of cross- appeal is required ( Hilton , at paragraph 12). What is engaged, however, is whether a new argument should be heard on appeal ( Eli Lilly Canada Inc. v. Teva Canada Limited , 2018 FCA 53 , 292 A.C.W.S. (3d) 146; R. v.

Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689). [ 46 ] I turn to the new issues and arguments said to be outside the scope of the appeal. [ 47 ] The political trust doctrine was not advanced at trial and not considered by the Federal Court. It is a new argument and, as the Attorney General points out, the Blood Tribe makes no attempt to link the argument to the reasons of the Federal Court. The Attorney General contends, and I believe is right to do so, that the assertion of a political rights doctrine is an attempt to argue that the judge reached the right conclusion, but on a basis that the judge did not consider.

The Attorney General says that he has not had an opportunity to state his position on the issue. [ 48 ] The second argument objected to is whether the Indian Act [R.S.C., 1985, c. I-5 ] is a complete code, which ousts the common law right of Aboriginal Canadians to sue. [ 49 ] The argument made at trial and which found favour with the judge was that as Treaty No. 7 had not been incorporated into legislation, and, as there was nothing in the Indian Act that permitted the Blood Tribe to sue on the treaty, the terms of Treaty No. 7 were unenforceable.

This argument has been recast by the Blood Tribe to say that the Indian Act is a complete code which displaced all common law right of action. It is made on the necessary admission that there was, in fact, a right to sue at common law—otherwise there would be nothing to displace. [ 50 ] This is a new argument, one which would require much more than has been put before this Court to be considered—the text, the context and purpose of the various provisions would have to be assessed as would the legislative history of the Indian Act and how it stood prior to 1982.

None of this was argued at trial and the argument is not developed in any way in this Court—provisions of the Act are neither identified nor explained and there is no legislative history. It would be impossible for a court to conduct the statutory

interpretation analysis necessary to conclude that the Indian Act prohibited the right of Aboriginal Canadians to sue. [ 51 ] The Attorney General also objects to language in the Blood Tribe’s memorandum of fact and law [RMFL] which raises whether there were practical and legal obstacles that prevented it from bringing its claim. He contends that this is a covert attempt to challenge the judge’s factual findings with respect to discoverability. [ 52 ] The Blood Tribe denies that it seeks to reverse the findings with respect to discoverability.

Paragraph 12 of the Blood Tribe’s memorandum in reply to the motion makes clear that the argument which underlies the Attorney General’s concerns is simply a reprise of the argument that there was no cause of action until 1982, relying again on Ravndahl v. Saskatchewan , 2009 SCC 7 , [2009] 1 S.C.R. 181 ( Ravndahl ) and the judge’s reasons, at paragraphs 499–501. [ 53 ] If successful, challenges to the discoverability and limitations findings, whether factual or legal, would fundamentally alter the scope of the appeal and the terms of the judgment itself.

Put otherwise, these arguments, if successful, would have consequences for other factually and legally discrete elements of the reasons and would, of necessity, require the variation of other parts of the judgment of the Federal Court ( Quan , at paragraph 39 ). [ 54 ] A respondent cannot use its discretion to raise “any argument” in support of a decision challenged on appeal as justification to unwind other parts of the judgment in respect of which a notice of cross-appeal ought to have been filed.

In those circumstances, fairness requires that notice of that intention be signaled early in the form of a notice of cross-appeal. Memoranda of fact and law on the cross- appeal would be exchanged and the legal and factual record before this Court would look much different than that currently before the Court. [ 55 ] The fourth argument pertains to the limitation period. At trial the Blood Tribe argued that the Court had a discretion to waive the limitation period, an argument rejected by the judge.

While the Blood Tribe uses, in its memorandum, language which may suggest an attempt to undo the judge’s findings of fact on discoverability, at paragraphs 41–42 of the reply memorandum, again, allay that concern. The Blood Tribe is simply re-arguing that Manitoba Metis allows a court to waive a limitation period. Again, while not expressed as such, the argument that the judge has a discretion to waive the limitation period is an alternative argument.

It is only applicable if there is a cause of action. [ 56 ] I appreciate the concern that language in the Blood Tribe memorandum can be read as an impermissible effort to vary the judgment and to collaterally challenge findings of fact and determinations of law in respect of which a notice of cross-appeal ought to have been filed. This concern however, is put to rest when both the Blood Tribe’s memoranda on appeal and in reply to the motion are read.

They leave no doubt that there is only one issue on appeal: • Paragraph 1 of the Blood Tribe’s appeal memorandum states that the Trial Judge correctly understood and interpreted limitation periods in the Aboriginal context; • Paragraph 5 of the memorandum, confirms that the issue on appeal is narrow: [W]hether treaty land entitlements under treaties between Canada and Indigenous Tribes were civilly actionable for a claim of ‘breach of treaty’ in Canadian courts before the advent of s. 35(1) of the Constitution Act, 1982 on April 17, 1982.

As the Trial Judge correctly held, they were not and therefore no statutory limitation period for a cause of action in breach of treaty under s. 35(1) could begin to run until 1982. • Paragraph 4 of the memorandum reinforces that the appeal only concerns “the one claim which was allowed”;

• Paragraph 35 acknowledges that paragraph 5(1)(

g) of the Alberta Limitation of Actions Act, 1970 applies and “would capture‘breach of treaty’”; • Paragraph 37 acknowledges the adverse finding of discoverability, but flags that this is of no consequence as there was no cause ofaction; • Paragraph 106, in its claim for relief, simply asks that “the appeal be dismissed in its entirety”. [57] Turning to the Blood Tribe’s reply to the Crown motion to file a reply memorandum; • Paragraph 22 states that “[t]he Respondents are not seeking to overturn any parts of the judgment under appeal and are not seeking adifferent disposition of the case” [Emphasis added] • Paragraphs 21, 30 indicate that its defence to the limitations period, simply put, is that treaties are not actionable. [58] In oral argument before this Court, counsel for the Blood Tribe did not stray outside the issues as framed by the notice of appealor seek a different outcome other than the dismissal of the appeal. [59] I therefore conclude that the Blood Tribe’s memorandum is within the guardrails of the issues as framed by the notice of appeal.I would grant the Crown’s motion to file a reply, but only to the extent that it responds to the political trust issue.

Whether breaches oftreaty could not be pursued because they were non-justiciable, political issues is a legal question which bears directly on the question inissue and requires no further evidence or fact finding. II. Treaties and the act of state doctrine [Table of Contents] [60] The parties read the reasons of the Federal Court judge differently. They do not agree as to whether the judge, in fact, concludedthat the historic treaties are international agreements.

The Attorney General argues that it is the only reasonable inference to be drawnfrom the judge’s silence as to how treaties were to be characterized, his heavy reliance on international treaty cases and his application ofthe act of state doctrine.

The Blood Tribe, for its part, notes that the judge recognized that the Supreme Court has consistently rejectedthe application of international law principles to the historic treaties. [61] Reading the reasons as a whole and having regard to the extensive reliance on international law cases to support the conclusionthat treaties were not enforceable, my view is that the judge, in fact, concluded that the historic treaties were international treaties. Thatsaid, I agree that the reasons are ambiguous, but it is an ambiguity that need not be resolved.

It is a debate of no consequence. [62] Even if the judge stopped short of finding that the treaties were international agreements, he erred in deciding the question ofwhether they were enforceable through the lens of public international law principles and applying the act of state doctrine. The FederalCourt decision pivots on the conclusion that the historical treaties were either international treaties or analogous to international treatiesand, as such, were unenforceable unless incorporated into Canadian law.

This conclusion is contrary to established Supreme Courtguidance on the legal characterization of treaties and the rejection of the application of international law principles into Canadian law. [63] The judge supported his conclusion by noting that the Supreme Court of Canada adopted the act of state doctrine in Francis v.The Queen, [1956] S.C.R. 618, (Francis), at page 621.

There, the Supreme Court stated that “it is clear that in Canadasuch rights and privileges as were here advanced of subjects of a contracting party to a treaty are enforceable by the Courts only wherethe treaty has been implemented or sanctioned by legislation” (Reasons, at paragraph 497). The judge also observed that the principleexpressed in Francis was restated in the Ontario Court of Appeal decision of R. v. Agawa, , 65 O.R. (2d) 505, at page509, 53 D.L.R. (4th) 101 (Agawa) (Reasons, at paragraph 498). There, Blair J.A. wrote: ….

Indian treaties are, however, similar in one respect to Canada’s international treaties. They are not self-executing and can acquire theforce of law in Canada only to the extent that they are protected by the Constitution or by statute. [Emphasis added by Federal CourtJudge] [64] I will address these cases later in these reasons, but it is sufficient to say at this point that these cases do not support theconclusion reached by the Federal Court. [65] The judge did much more than look to international law by analogy, he adopted substantive principles of international law.

To beprecise, the judge applied the act of state doctrine, a substantive component of international law to Treaty No. 7. The doctrine holds thatunless domestic legislation provides a right of recourse, municipal or domestic courts do not have the competence to consider treatiesbetween two foreign and sovereign countries. This conclusion comes as a surprise, given the extent to which Canadian courts recognizedthe enforceability of treaties since Confederation and the consistent and unequivocal jurisprudence of the Supreme Court that treaties arenot international agreements.

Supreme Court of Canada decisions [Table of Contents] [66] In the 1985 decision of Simon v. The Queen, [1985] 2 S.C.R. 387, (Simon), at paragraph 33, the Court considereda pre-Confederation friendship treaty and concluded: In considering the impact of subsequent hostilities on the peace Treaty of 1752, the parties looked to international law on treatytermination. While it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, theseprinciples are not determinative.

An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminatedaccording to the rules of international law. R. v. White and Bob (1964), (BC CA), 50 D.L.R. (2d) 613 (B.C.C.A.), at pp.617-18, aff’d [1965] S.C.R. vi, (SCC), 52 D.L.R. (2d) 481; Francis v. The Queen, (SCC), [1956]S.C.R. 618, at p. 631; Pawis v. The Queen, (FC), [1980] 2 F.C. 18, (1979), 102 D.L.R. (3d) 602, at p. 607.

[67] A year later, in R. v. Horse, [1988] 1 S.C.R. 187, (Horse), at paragraphs 35–37, the Court reiterated theconclusion in Simon. The question in Horse was whether a pre-Confederation friendship agreement was a formal treaty for the purposesof the Indian Act. The Court rejected the proposition that it should have regard to principles of international law in deciding thatquestion. [68] In R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427 (Sioui), the Supreme Court again consideredwhether a pre-Confederation treaty was a treaty within the meaning of

section 88 of the Indian Act. The appellant argued that the BritishCrown could not validly enter a treaty with the Hurons as it was not sovereign in Canada in 1760.

The appellant based this argument oninternational law, as stated by eighteenth and nineteenth century jurists, which required that a state should be sovereign in a territorybefore it could alienate that territory. [69] The Court rejected the argument, noting that it was not even necessary to consider the substance of the point of international law.It noted that at the time with which the Court was concerned “relations with Indian tribes fell somewhere between the kind of relationsconducted between sovereign states and the relations that such states had with their own citizens” (Sioui, at page 1038).

In concludingthat the 1760 treaty between Governor Murray and the Hurons was a treaty within the meaning of the Indian Act, the Court noted theSimon decision was clear that “an Indian treaty is an agreement sui generis which is neither created nor terminated according to the rulesof international law” (Sioui, at page 1038). [70] I will return to Sioui later in these reasons when I consider whether the numbered treaties were enforceable, but pause here tonote that the Supreme Court considered a treaty entered into in 1760 to create binding legal obligations.

Consequently, the treaty wasgiven legal effect and the right to cut wood, fish and hunt was protected from provincial regulatory restrictions. This raises the obviousquestion as to why a treaty executed 117 years later did not create binding obligations. Jurisprudence prevailing on the expiry of the limitation period [Table of Contents] [71] The trilogy of Supreme Court cases in the 1990’s, Simon, Horse and Sioui, did not change the law. They are consistent with thejurisprudence governing the legal characterization of treaties prevailing at the expiry of the limitation period in 1978. [72] In Calder et al. v.

Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313, 34 D.L.R. (3d) 145 (Calder),Hall J., dissenting in the result but not on this point, discussed, and rejected, the application of the act of state doctrine as a bar torecognizing Aboriginal title (at pages 404–406). The act of state doctrine only applies where the sovereign has acquired land fromanother sovereign, which can only be done through a treaty of cession. [73] In Pawis v. R., (FC), [1980] 2 F.C. 18, 102 D.L.R. (3d) 602 (T.D.) (Pawis), at pages 24–25, Marceau J. wrote: (

i) It is obvious that the Lake-Huron Treaty, like all Indian treaties, was not a treaty in the international law sense. The Ojibways did notthen constitute an “independent power”, they were subjects of the Queen. Although very special in nature and difficult to preciselydefine, the Treaty has to be taken as an agreement entered into by the Sovereign and a group of her subjects with the intention to createspecial legal relations between them.

The promises made therein by Robinson on behalf of Her Majesty and the “principal men of theOjibeway Indians” were undoubtedly designed and intended to have effect in a legal sense and a legal context. The agreement cantherefore be said to be tantamount to a contract, and it may be admitted that a breach of the promises contained therein may give rise toan action in the nature of an action for breach of contract. [Emphasis added] [74] So too, in Hay River (Town of) v.

R., (FC), [1980] 1 F.C. 262, 101 D.L.R. (3d) 184 (Hay River), at page 265,was the proposition that a treaty was an international agreement rejected: It is not necessary, for this purpose, to attempt a comprehensive definition of the legal nature of Treaty No. 8. Clearly, it is not aconcurrent executive act of two or more sovereign states. Neither, however, is it simply a contract between those who actually subscribedto it.

It does impose and confer continuing obligations and rights on the successors of the Indians who entered into it, provided thosesuccessors are themselves Indians, as well as on Her Majesty in right of Canada. [75] On the eve of the enactment of the Constitution Act, 1982, the United Kingdom Court of Appeal considered whether the treatieswere enforceable against the Crown in the United Kingdom. The Court of Appeal noted that, “although the relevant agreements with theIndian peoples are known as ‘treaties’, they are not treaties in the sense of public international law.

They were not treaties betweensovereign states” (R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118, (1982), 1982 WL 221742). [76] In sum, there is no support in the case law on either side of the expiry of the limitation period for the proposition that the historictreaties engage the act of sta

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