Alberta First Nation Great Reserve Entitlement Treaty: Supreme Court

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OTTAWA – The Supreme Court of Canada has ruled that an Alberta First Nation has less land than it should have under a treaty with the Crown a century ago.

In Friday's 7-0 ruling, the high court ruled the blood tribe was entitled to more than 420 square kilometers of additional territory, saying the Crown had “flagrantly violated” the terms of the treaty.

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Members of the Blood Tribe near Lethbridge, Alta., had long argued that Canada had reneged on an 1877 promise to allot a one-square-mile reserve to every family of five.

In its ruling, the Supreme Court noted that the Crown had recently admitted to breaching its land title obligations.

However, the court described the granting of permission as an eleventh-hour concession in the protracted legal battle.

According to the agreement, the blood tribe had the right to reserve 1,839 square kilometers, the court said.

By securing a reserve of just 1,418 square kilometres, Canada “dishonourably violated the terms of the land grant treaty,” wrote Judge Michel O'Bonsavin for the court.

“Ultimately, a declaration is a discretionary remedy that must be considered in the unique context of the dispute,” he said.

O'Bonsavin added that “a declaration that the Blood Tribe is entitled to more land will play an important role in identifying the dishonorable conduct of the Crown, assisting in future reconciliation and helping to restore the honor of the Crown.”

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The federal government is reviewing the decision and its implications, said Carolann Gratton, Canada's spokeswoman for Crown-Indigenous Relations and Northern Affairs.

“Historically, the Canadian government has broken promises to Indigenous peoples, as the court found in the Blood Tribe case,” Gratton said in a statement.

According to him, the two sides are “actively negotiating to resolve past injustices.”

Blood Tribe did not immediately comment.

The Supreme Court's decision emphasized the “sacred nature” of binding obligations entered into in treaties between the Crown and Indigenous Peoples.

“Treaty promises were to be fulfilled as long as the sun rose and the river flowed,” wrote O'Bonsavin.

In 1877, Treaty No. 7 between the Crown and the Blackfoot Confederation of First Nations established Blood Tribe Reserve No. 148, Canada's largest reserve.

Ninety-four years later, a Blackfoot researcher concluded that the size of the reservation fell short of what was promised by an appropriate formula based on population statistics from 1879-1884.

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Subsequent attempts to negotiate with the federal minister in charge at the time failed.

In 1980, the Blood Tribe filed its case in Federal Court, alleging breach of fiduciary duty, fraudulent concealment and negligence. He sought a declaration and damages for breach of contract arising out of the Crown's failure to fulfill its obligation over the land.

However, many years passed before the court heard the case.

The trial judge rejected most of the claims, but accepted that the reserve calculated by the Crown was too small.

The judge also found that the remedies sought by Blood Tribe were not barred by the six-year statute of limitations that began in the late 1970s. This action could not have been continued until section 35(1) of the Constitution Act came into force in 1982, creating a new cause of action for breach of contract, the judge argued.

A federal appeals court disagreed, saying that the vesting claim was indeed time-limited and that constitutional changes did not create new treaty rights.

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In Friday's ruling on the Blood Tribe's appeal, the Supreme Court agreed that the 1982 amendments do not open up treaty rights, but instead assert the Crown's duty to respect existing treatment rights.

The Supreme Court also found that constitutional amendments do not alter the statute of limitations applicable to claims for breach of treaty rights. As a result, the Blood Tribe's land claim was actually filed in Federal Court after the six-year statute of limitations.

However, the Supreme Court stated that it “has jurisdiction to decide what the lower courts should have done.”

O'Bonsavin wrote, “Given the longevity and scope of the Crown's dishonorable treatment of the blood tribe, declaratory relief is warranted.”

“Declaratory relief in this context promotes reconciliation and helps restore the nation-to-nation relationship between bloodline and Crown.”

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