Canada v. Jim Shot Both Sides

Canada v. Jim Shot Both Sides
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-02-10
Neutral citation
2022 FCA 20
File numbers
A-329-19
Notes
A correction was made on February 19th, 2024.
Reported Decision
Decision Content
Date: 20220210
Docket: A-329-19
Citation: 2022 FCA 20
CORAM:
BOIVIN J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
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
Heard by online video conference hosted by the Registry on April 13 and 14, 2021.
Judgment delivered at Ottawa, Ontario, on February 10, 2022.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
BOIVIN J.A. WOODS J.A.
Date: 20220210
Docket: A-329-19
Citation: 2022 FCA 20
CORAM:
BOIVIN J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
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
REASONS FOR JUDGMENT
TABLE OF CONTENTS
En
Blank/En blanc
Para.
I. Introduction
1
Overview
1
The historical context
20
Preliminary issue
37
II. Treaties and the act of state doctrine
60
Supreme Court of Canada decisions
66
Jurisprudence prevailing on the expiry of the limitation period
71
Decisions relied on by the Federal Court
79
(1) R. v. Agawa
80
(2) Francis v. The Queen
87
(3) Vajesingji
89
(4) Hoani
92
III. Whether the terms of Treaty 7 were enforceable at common law
98
Overview
98
Treaty rights and Aboriginal rights
106
Governing law
112
Jurisprudence prior to 1982
116
Post section 35 jurisprudence
166
Academic commentary
176
Statutory authority to sue
183
The political trust doctrine
191
IV. Section 35(1) of the Constitution Act, 1982
200
V. Section 35 of the Constitution Act and limitations legislation
210
Supreme Court of Canada guidance
213
Application of Lameman and Wewaykum in other courts
218
Discretion to waive
225
VI. Conclusion
230
RENNIE J.A.
I. Introduction Overview [1] This appeal raises the single question whether the terms of Treaty 7 were enforceable in a Canadian court prior to the coming into force of section 35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [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 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 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 7, September 22 and December 4, 1877, at p. 4, Appendix D of the Decision under appeal, 2019 FC 789, per Zinn J.). 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 Blood Tribe to bring its claim within 6 years of its discoverability date. As the claim was discoverable in 1971 and the action not commenced until 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 to 1982. Relying on R. v. Sundown, [1999] 1 S.C.R. 393, [1999] 2 C.N.L.R. 289 at para. 24 and First 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 para. 37, the judge reasoned that as treaties are not contracts and as the 1980 action was pled in contract, no cause of action existed by which the 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. Sahaba, [1859] U.K.P.C. 18) and 1941 (Hoani Te Heuheu Tukino v. Aotea District Maori Land Board, 1941 A.C. 308), the judge adopted the act of state doctrine, a principle of international law that provides that unless incorporated into a domestic law which confers a right of action, treaties are not enforceable in national courts. The judge reasoned that “[t]here is nothing in the Indian Act permitting a First Nation to bring an action to enforce the TLE under a Treaty” (Reasons at para. 500). As Treaty 7 was not incorporated into Canadian law, it was not enforceable in Canadian courts.
[9] In the judge’s opinion, this changed on April 17, 1982, with the advent of section 35 of the Constitution Act, 1982. Section 35 created a right to sue: “Canada is the one who created the new cause of action when it enshrined existing treaty rights into the Canadian constitution” (Reasons at para. 475). Therefore, for the purposes of the Alberta Limitation of Actions Act, 1970, time only began to run 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 as an international agreement and relying on the act of state doctrine to require that Treaty 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 new cause 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 commitments dependent on the good grace and will of the Sovereign to respect as it chose. The Blood Tribe had no recourse or remedy for the breach of its treaty until 1982 when section 35 came into force. The Blood Tribe also relies on the political trust doctrine, a concept in the jurisprudence 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 be allowed. 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 the characterization of treaties as international agreements, as well as the application of international law principles to Canadian law. The Federal Court erred in characterizing Treaty 7 as if it were an international treaty and applying the act of state doctrine to conclude that its terms were unenforceable in a Canadian court. It was only by ignoring the governing jurisprudence that holds that treaties are enforceable agreements under Canadian law that the judge was able to open the door to the act of state doctrine, a principle of public international law.
[14] Second, there is an unbroken line of decisions over 120 years recognizing the enforceability of the commitments made in the numbered treaties. This jurisprudence has consistently taught that the numbered treaties created binding obligations, both legal and moral, on the Crown. Their terms were enforceable in Canadian courts because a foundational, robust legal principle compelled compliance – 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 treaties created binding legal obligations, and the second is the studied indifference or agnosticism of the courts to the form in which, or the manner 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 the question before the Court was whether a court, having found that the land entitlement term of Treaty 7 had been breached, could have provided a remedy. The evolution in the language used to describe the nature of treaty obligations or the means of their enforcement; whether through declaratory actions, breach of contract, breach of treaty or breach of a constitutional obligation, does not change the question of whether a cause of action exists. While the legal characterization of the treaties has changed, the readiness of the courts 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 – the Supreme Court has settled that question – rather, section 35 gave constitutional protection to existing treaty rights. The inquiry that ought to have been undertaken by the Federal Court was to determine whether, as of the eve of the expiry of the limitation period, a Canadian court would have provided a remedy at common law for breach of the TLE term. As I will explain, the reasoning of the Federal Court with respect to section 35 also circumvents and nullifies unequivocal jurisprudence of the Supreme Court with respect to limitations legislation and section 35.
[18] Much of the argument before this Court failed to distinguish between Aboriginal rights and treaty rights. Treaty rights and Aboriginal 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 as opposed to whether an Aboriginal right was enforceable at common law must proceed on an understanding of the distinction, prior to 1982, 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 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 [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 para. 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 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 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 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 [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 (Kligman v. M.N.R. (C.A.), 2004 FCA 152, [2004] 4 F.C.R. 477) and may provide “a new angle” on the existing issues (Smith v. St. Albert (City), 2014 ABCA 76, 370 D.L.R. (4th) 514 at para. 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 paras. 21, 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 [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 para. 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 (Guidon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at paras. 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 para. 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, paras. 2 and 3 of the judgment read:
2. 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 7;
3. All claims of the Blood Tribe, other than the Treaty Land Entitlement claim arising from Canada’s breach of Treaty 7, are time-barred by operation of The Limitation of Actions Act, RSA 1970, c 209, made applicable to this action by section 38 of the Federal Courts Act, RSC 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 para. 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; 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 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 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 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 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 paras. 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 para. 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, paras. 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 of action;
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 a different 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 appeal or 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 of treaty could not be pursued because they were non-justiciable, political issues is a legal question which bears directly on the question in issue and requires no further evidence or fact finding.
II. Treaties and the act of state doctrine [60] The parties read the reasons of the Federal Court judge differently. They do not agree as to whether the judge, in fact, concluded that the historic treaties are international agreements. The Attorney General argues that it is the only reasonable inference to be drawn from the judge’s silence as to how treaties were to be characterized, his heavy reliance on international treaty cases and his application of the act of state doctrine. The Blood Tribe, for its part, notes that the judge recognized that the Supreme Court has consistently rejected the 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 conclusion that treaties were not enforceable, my view is that the judge, in fact, concluded that the historic treaties were international treaties. That said, 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 of whether they were enforceable through the lens of public international law principles and applying the act of state doctrine. The Federal Court decision pivots on the conclusion that the historical treaties were either international treaties or analogous to international treaties and, as such, were unenforceable unless incorporated into Canadian law. This conclusion is contrary to established Supreme Court guidance 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, 1956 CanLII 79 (SCC) at p. 621 [Francis]. There, the Supreme Court stated that “it is clear that in Canada such rights and privileges as were here advanced of subjects of a contracting party to a treaty are enforceable by the Courts only where the treaty has been implemented or sanctioned by legislation” (Reasons at para. 497). The judge also observed that the principle expressed in Francis was restated in the Ontario Court of Appeal decision of R. v. Agawa (1988), 53 D.L.R. (4th) 101, 65 O.R. (2d) 505 at 509 [Agawa] (Reasons at para. 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 the force of law in Canada only to the extent that they are protected by the Constitution or by statute. [Emphasis added by Federal Court Judge]
[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 the conclusion 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 be precise, the judge applied the act of state doctrine, a substantive component of international law to Treaty 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. This conclusion comes as a surprise, given the extent to which Canadian courts recognized the enforceability of treaties since Confederation and the consistent and unequivocal jurisprudence of the Supreme Court that treaties are not international agreements.
Supreme Court of Canada decisions [66] In the 1985 decision of Simon v. The Queen, [1985] 2 S.C.R. 387, 1985 CanLII 11 (SCC) at para. 33 [Simon], the Court considered a 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 treaty termination. While it may be helpful in some instances to analogize the principles of international treaty law to Indian treaties, these principles are not determinative. An Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law. R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), at pp. 617-18, aff'd [1965] S.C.R. vi, 52 D.L.R. (2d) 481; Francis v. The Queen, [1956] S.C.R. 618, at p. 631; Pawis v. The Queen, [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, 1988 CanLII 91 (SCC) [Horse] at paras. 35-37, the Court reiterated the conclusion in Simon. The question in Horse was whether a pre-Confederation friendship agreement was a formal treaty for the purposes of the Indian Act. The Court rejected the proposition that it should have regard to principles of international law in deciding that question.
[68] In R. v. Sioui, [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427 [Sioui], the Supreme Court again considered whether a pre-Confederation treaty was a treaty within the meaning of section 88 of the Indian Act. The appellant argued that the British Crown could not validly enter a treaty with the Hurons as it was not sovereign in Canada in 1760. The appellant based this argument on international law, as stated by eighteenth and nineteenth century jurists, which required that a state should be sovereign in a territory before 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 relations conducted between sovereign states and the relations that such states had with their own citizens.” In concluding that the 1760 treaty between Governor Murray and the Hurons was a treaty within the meaning of the Indian Act, the Court noted the Simon decision was clear that “an Indian treaty is an agreement sui generis which is neither created nor terminated according to the rules of international law” (Sioui at p. 1038).
[70] I will return to Sioui later in these reasons when I consider whether the numbered treaties were enforceable, but pause here to note that the Supreme Court considered a treaty entered into in 1760 to create binding legal obligations. Consequently, the treaty was given legal effect and the right to cut wo