Jim Shot Both Sides v. Canada

Jim Shot Both Sides v. Canada
Court (s) Database
Federal Court Decisions
Date
2019-06-12
Neutral citation
2019 FC 789
File numbers
T-238-80
Notes
A correction was made on July 30, 2019. A correction was made on December 21, 2020.
Reported Decision
Decision Content
Date: 20190612
Docket: T-238-80
Citation: 2019 FC 789
Ottawa, Ontario, June 12, 2019
PRESENT: The Honorable Mr. Justice Zinn
BETWEEN:
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
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
Table of Contents
I. INTRODUCTION 4
A. Procedural History of this Action 7
B. Canada’s Objections Based on the Pleadings 11
a. Failure to Plead a Breach of Treaty 11
b. Raising a New Constitutional Question 19
c. Addressing the Constitutional Questions Only in Reply 20
C. Key Individuals 20
II. THE EVIDENCE 24
A. Blood Tribe Oral History Evidence 25
a. Traditional Territory of the Blackfoot Confederacy 26
b. Blood Tribe “Home Base” 27
c. Clans and Leadership and Decision-Making 28
d. Traditional Treaty Making Process 29
e. The Blood Tribe’s Understanding of Treaty 7 29
f. Land the Blood Tribe Understood to be Reserved After Treaty 7 31
g. Use by the Blood Tribe of the Big Claim Land After Treaty 32
B. Assessing Oral History Evidence 34
C. The Expert Evidence 39
D. Relevant Historical Background 46
a. Prelude to Treaty 7 46
b. Treaty 7 Negotiations 49
c. Locating the Blood Reserve and the Red Crow Agreement 56
d. The Land Between the Kootenai and Belly Rivers 67
e. The 1882 Survey of the Blood Reserve 71
f. Grazing Leases 74
g. The 1883 Agreement and the 1883 Survey 77
h. 1888 Tour of the Southern Boundary 81
i. Decision to Move the Southern Boundary 84
III. TREATY LAND ENTITLEMENT [TLE] 86
A. Date for Population Determination 88
B. The Population of the Blood Tribe on September 22, 1877 91
IV. RESERVE CREATION 105
A. Crown Intention 110
B. The Intention Must Be Possessed by Authorized Crown Agents 113
C. Steps to Set Apart Land for the Benefit of the Blood Tribe 113
D. The Band Must Accept the Setting Apart 122
E. Conclusion 126
V. THE BIG CLAIM 127
VI. BREACH OF FIDUCIARY DUTY 131
A. Canada’s Duty to First Nations 132
B. Duty to Implement the Treaty 135
C. Canada’s Duty to the Blood Tribe After the Reserve Was Created 137
VII. LIMITATIONS DEFENCE 139
A. Application of the Crown Liability Act 139
B. Application of Provincial Limitation Acts to Treaty and Aboriginal Rights 140
C. The Relevant Provincial Limitations Laws 145
D. Alberta Limitations Act 148
E. Trust Exceptions in The Limitation of Actions Act, 1970 150
F. Lulling / Abuse of Process 155
G. Discovery or Discoverability of the Facts Underlying the Claims 158
a. The Big Claim 159
b. The 1882 Reserve Claim 161
c. The TLE Claim 163
d. Fraudulent Concealment 164
H. Equitable Defences 167
I. Conclusion 167
VIII. BREACH OF TREATY AS AN ACTIONABLE CAUSE OF ACTION 168
IX. CONCLUSION 183
JUDGMENT 184
APPENDICES 185
A. Map of the Blood Tribe Reserve and the Big Claim Area 185
B. Map of the Blood Tribe Reserve and the Treaty 7 Area 186
C. Map of Area to the South of the Blood Reserve 187
D. Copy of Treaty and Supplementary Treaty 7, September 22 and December 4, 1877 [Treaty 7] 188
E. Blackfoot, Blood, and Peigan Populations According to Treaty Annuity Paylists, 1877-1890 197
F. Agreement Releasing Blood Tribe Interest in Treaty 7 Reserve dated September 25, 1880 [Red Crow Agreement] 199
G. Map of Grazing Leases Showing the Location of Leases 13 and 17 and Nelson’s 1882 Southern Boundary as Identified by Ms. Robidoux 201
H. July 2, 1883 Agreement Whereby the Blood Tribe Surrenders its Interest in the Land 202
“We know parts of the land, as we know each other as relatives.
We are kin with the land.”
Wilton Goodstriker
I. INTRODUCTION
[1] Blood Tribe Reserve No. 148 [the Blood Reserve or Reserve] is in southern Alberta. It is the largest reserve in Canada occupying an area of 547.5 square miles. [1] It is the reserve of the Plaintiffs, the Kainai, [2] or the Blood Tribe.
[2] The northern boundary of the Blood Reserve is at the confluence of the St. Mary [3] and Belly [4] Rivers, near where old Fort Kipp was located. The Reserve extends south and west, bounded by the Belly River and the St. Mary River to an east west line about 14 miles north of the Canada-US border. It lies just north of Cardston, Alberta, a town settled in 1887 by members of The Church of Jesus Christ of Latter-day Saints [the Mormons] who moved there from the Territory of Utah, apparently to escape restrictions on polygamous relationships.
[3] Treaty 7, made on September 22, 1877, was between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians. The Blackfoot Confederacy [the Confederacy] was comprised of three tribes: the Siksika [Blackfoot], Kainai [Blood], and Piikani [Peigan]. Treaty 7 promised the Blood Tribe and each of the others, a reserve. The location of the Blood Tribe reserve is set out in Treaty 7; however, that location was changed by agreement between the Blood Tribe and Canada.
[4] The Blood Tribe claims that its Reserve does not accord with the land promised by Canada. The territory it lays claim to is known to the Blood Tribe as the "Big Claim." The Big Claim territory extends west of the current Blood Reserve to the former Kootenai River [5] (now the Waterton River) and south to the Canada-USA border. It includes Cardston and a part of Waterton Lakes National Park.
[5] There are two other aspects in this action to the claim of the Blood Tribe to land. They too relate to the boundaries of the promised reserve.
[6] The first aspect relates to the surveying of the reserve. Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 [the 1882 Survey] and the second was done in 1883 [the 1883 Survey]. The 1882 Survey places the southern boundary of the reserve at an east-west line about 9 miles north of the Canada-US border, marking out an area of 650 square miles. The town of Cardston falls within the area of the 1882 Survey. The 1883 Survey (marking the present Reserve) moved the southern boundary 5 miles north, marking out an area of 547.5 square miles. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880, SC 1880, c 28 [The Indian Act, 1880]. The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it.
[7] The second aspect relates to the promised geographic size of the reserve under the formula set out in Treaty 7. Canada promised the Blood Tribe and each of the other tribes under Treaty 7, a reserve equal to “one square mile for each family of five persons, or in that proportion for larger and smaller families.” This is the Treaty Land Entitlement [TLE]. The reserve described by the 1882 Survey equates to the membership of the Blood Tribe being 650 families or 3,250 persons. The reserve described by the 1883 Survey equates to the membership of the Blood Tribe being 547.5 families, or 2,738 persons. The Blood Tribe says that its membership at the relevant time was such that its promised reserve under the TLE is larger than provided for under either survey. Accordingly, it says that Canada breached this treaty promise, and failed in its fiduciary duty to honestly and to accurately implement the treaty promises.
[8] For its part, Canada says that the reserve size as defined by the 1883 Survey, the current Reserve, meets its TLE obligation under Treaty 7, and that the 1882 Survey was a preliminary survey and “did not create a reserve.” Under its theory of the case, no surrender was required to change the southern boundary described in the 1882 Survey to that in the 1883 Survey.
[9] Canada pleads that this action is time-barred by virtue of the Limitations Act, RSA 2000, c L-12 [Limitations Act 2000], and its precursors, as made applicable by section 39 of the Federal Courts Act, RSC 1985 c F-7 [Federal Courts Act], and section 11 of the Crown Liability Act, RSC 1970, c C-38 [Crown Liability Act], and their respective precursors.
[10] In reply, the Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Constitution Act, 1982]. It therefore submits that Canada’s limitation defence must fail. It further submits that at law, the 1882 Survey created a reserve and under The Indian Act, 1880, a surrender was required to effect a change in 1883. It also submits that Canada from at least the date of Treaty 7 onwards, as regards the proper Blood Tribe reserve size and location has breached its fiduciary duty to it, and that the Blood Tribe has suffered a loss of land or is entitled to compensable damages.
[11] If there is a finding of liability on any of the claims asserted by the Blood Tribe, the issue of remedy will be determined later in Phase III of this action.
[12] Appendix A is a map showing the current boundaries of the current Blood Reserve, and the Big Claim area. Appendix B is a map showing the current Blood Reserve and the area covered by Treaty 7. Appendix C is another map showing the location of the timber limit, marked as Blood No 148A, the southern limit of the Reserve and some of the geographic features including Mountain View and Lee (or Lee’s) Creek which are referred to in the Reasons. Appendix D is a copy of the text of Treaty 7.
A. Procedural History of this Action
[13] The Blood Tribe commenced this action by Statement of Claim filed January 10, 1980. Canada filed its Statement of Defence on April 3, 1980. Nothing much happened until the fall of 1996.
[14] On August 7, 1996, the Blood Tribe filed a motion confirming that this action would be continued in Federal Court, notwithstanding that it had advanced its land entitlement claim under the Specific Claims Policy of the Department of Indian Affairs and Northern Development.
[15] Canada rejected the land entitlement claim in November 2003, taking the position that no outstanding obligation existed with respect to the TLE claim. The Blood Tribe then formally requested the Indian Claims Commission [ICC] to conduct an inquiry into its rejected claim. In a decision dated March 30, 2007, the ICC made two recommendations to the parties. First, it recommended that the “claim for the Big Claim lands constituting the reserve not be accepted.” Second, it recommended to the parties that “the claim that the 1882 Nelson survey established the Blood Tribe reserve be accepted” as it established the reserve and a surrender was required to move the southern boundary as happened in 1883. The findings and recommendations of the ICC are not binding on the parties or this Court.
[16] The parties could not agree on the claims and so reactivated this action. It was case-managed and the trial of this action divided into three phases. As noted, the action was bifurcated between liability and remedy.
[17] Phase I was held on the Blood Reserve in May 2016, for the purpose of receiving oral history evidence from members of the Blood Tribe. This portion of the evidence was taken some two years before the remainder of the evidence, as the Elders who had oral history evidence were aging.
[18] Phase II was held at the Federal Court in Calgary, Alberta, in May and June 2018, to hear fact and expert witness evidence. The parties then made extensive written submissions followed by oral submissions in Calgary, Alberta, in December 2018. Phase III, dealing with remedy, will be held in Calgary, Alberta, at a future date if the Court finds that Canada is liable to the Blood Tribe for any of the claims in this action.
[19] The Statement of Claim was amended by an Order dated February 24, 1999. In an affidavit filed in support of its motion, a solicitor for the Blood Tribe attested that the amendment was required, as “the proclaiming of the new Limitations Act in Alberta on March 1, 1999 has necessitated that the Plaintiffs review the Statement of Claim to ensure that their rights are fully protected.” She further attests that there “have been considerable developments in the law since the filing of the original Statement of Claim in 1980 and the Plaintiffs have conducted research that has resulted in the submission of the Specific Claim in 1996” and the proposed Amended Statement of Claim “reflects those changes and research.” Canada did not oppose the amendment.
[20] On April 11, 2016, the Blood Tribe served and filed a Notice of Constitutional Question questioning “the constitutional applicability to the within matter of the Limitations Act, R.S.A. 2000 Ch. L-12, Limitation of Actions Act, R.S.A. 1980 cL-15, Limitations of Action Act, R.S.A. 1970, c. 209, Limitations of Action Act, S.A. 1935, c. 8 or any of the preceding Acts passed by the Provincial Legislature of Alberta dealing with limitation periods to bring legal claims before the courts as they relate to Indians, and Lands reserved for Indians [sic].”
[21] In the alternative, the Plaintiffs also challenged the constitutional validity of section 39 of the Federal Courts Act (and its predecessors), and section 32 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 (and its predecessors), insofar as they purport to incorporate provincial laws that would bar claims as they relate to “Lands reserved for the Indians” as unlawful subdelegation, in breach of Canada’s constitutional duty to consult First Nations in matters affecting them, and in breach of section 35 of the Constitution Act, 1982.
[22] The focus of the Plaintiffs’ submission on the constitutional questions they raise is whether their claims can be “subject to a provincial limitation period, as a provincial limitation statute cannot deprive the Bloods of ‘lands reserved for Indians’ once a reservation is created.”
[23] In its written closing, the Blood Tribe submitted that it had proved three causes of action on the evidence: (a) an actionable breach of treaty obligation; (b) the creation of a reserve in law prior to July 2, 1883, and the illegal taking of part of it in 1883; and (c) a breach by Canada of its fiduciary duty to the Blood Tribe.
[24] In its written reply submissions, the Blood Tribe addressed the constitutional questions and further submitted in response to Canada’s limitation defence that “no civil cause of action in breach of treaty legally existed until April 17, 1982 and therefore no limitation period can run for that cause of action until that time.”
[25] Canada raises two objections to this challenge. First, it submits that because the Blood Tribe has not made any submission on the questions raised in its Notice of Constitutional Question in its initial written submissions “the Court should decline to hear any submissions on this issue.” Second, it submits that the Court should decline to hear any constitutional issues raised in the reply or in oral submissions that are not included in the Notice of Constitutional Question.
[26] Canada also submitted that the Blood Tribe had not pleaded a claim for breach of treaty in the Amended Statement of Claim, and thus that cause of action was not properly before the Court. It says that that the recent claim of breach of treaty coupled with the submission that prescription and limitations do not run against such claims prior to April 17, 1982, would “certainly create undue hardship and prejudice” to Canada.
[27] When these concerns were raised by Canada in its oral submissions, Canada was provided with an opportunity to file written sur-reply submissions addressing the Plaintiffs’ reply submissions on the constitutional questions, and on whether prescription and limitations run against a claim for breach of treaty before April 17, 1982. Canada filed its sur-reply on January 30, 2019. The Plaintiffs say that Canada made some “impermissible” arguments and asked to file a brief sur-sur-reply of their own. Upon review, I concluded that there was nothing impermissible in Canada’s sur-reply submissions and refused the motion.
B. Canada’s Objections Based on the Pleadings
a. Failure to Plead a Breach of Treaty
[28] I will first address Canada’s submission that the Blood Tribe failed to plead breach of treaty as a cause of action and therefore this cause of action is not now open to the Plaintiffs.
[29] In their memorandum, the Plaintiffs submit that their original Statement of Claim “was amended on February 24, 1999 to include s. 35 of the Constitution Act, 1982 and breach of treaty thereunder at paragraph 7 of the Amended Statement of Claim.” That paragraph reads as follows:
The members of the Blood Tribe have Aboriginal and Treaty rights which are constitutionally protected by section 35 of the Constitution Act, 1982.
[30] It is questionable whether the Blood Tribe by amending its pleading as it did, pleaded breach of treaty as a legal cause of action; however, as explained below, I find that there was no requirement that it do so. The original Statement of Claim was sufficient to permit it to make the submission that Canada was in breach of its treaty obligations.
[31] Canada, in my opinion, takes a far too narrow view of the current state of the law of pleadings. One will not find the words “breach of treaty” in the Amended Statement of Claim; however, that does not entail that the claim does not include a claim for breach of treaty, and I find that it does.
[32] The Plaintiffs in 1980 pleaded the treaty and the alleged breach regarding its promised reserve size in the Statement of Claim. These alleged breaches were characterized as constituting a breach of contract on the premise that Treaty 7 is a contract:
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 said size of the 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.
[33] Although this pleading characterizes these material facts as constituting a breach of contract, the pleading is relevant because it quite clearly put Canada on notice that the action related to the promised reserve size in Treaty 7, and the allegation that the size of reserve the Blood Tribe was given failed to meet that obligation. If that was not sufficient, at the opening of Phase I, on May 4, 2016, counsel for the Blood Tribe stated:
This trial is about an unfulfilled treaty promise made by Canada to the Blood Tribe. The treaty promise was made to set aside a reserve in the place according to their desire of a size representing their lawful entitlement. That's what this case is about.
[34] Canada understood that the Blood Tribe’s action was grounded on alleged breaches of Treaty 7. This is clear from Canada’s written submission at paragraph 58. It wrote, “It is important to note that in the original Statement of Claim, in paragraphs 12 through 14, the Plaintiffs asserted their claim based on treaty obligations.”
[35] The Plaintiffs’ transition in seeing the matter as a breach of contract to a breach of treaty is unexplained. However, it is noted that in Henry v R (1905), 9 Ex CR 417 (Can) [Henry], the Exchequer Court found it had jurisdiction to adjudicate on a Petition of Right filed by an Indian Band, alleging that a sum of money granted under a treaty was withheld by Canada and should be credited to its accounts. The Court did so on the basis that the treaty was a contract, observing: “as their right thereto rests upon the treaty or contract between the Crown and them, and upon The British North America Act, 1867, the court has, I think, jurisdiction so to declare” [emphasis added]. I add that the question of the Court’s jurisdiction does not seem to have been raised by Canada in that case.
[36] It has only been more recently that courts have recognized that treaties are not, per se, contracts. In R v Sundown, [1999] 1 SCR 393, 170 DLR (4th) 385 at paragraph 24, the Supreme Court of Canada stated:
Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crown and various First Nations. They often formed the basis for peace and the expansion of European settlement. In many if not most treaty negotiations, members of the First Nations could not read or write English and relied completely on the oral promises made by the Canadian negotiators. There is a sound historical basis for interpreting treaties in the manner summarized in Badger. Anything else would amount to be a denial of fair dealing and justice between the parties. [emphasis added]
[37] Similarly, in First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 at paragraph 37, the Supreme Court of Canada stated:
Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole and the treaty’s objectives (Little Salmon, at para. 10; Moses, at para. 7; ss. 2.6.1, 2.6.6 and 2.6.7 of the Final Agreements; see also the Interpretation Act, R.S.C. 1985, c. I-21, s. 12). Indeed, a modern treaty will not accomplish its purpose of fostering positive, long-term relationships between Indigenous peoples and the Crown if it is interpreted “in an ungenerous manner or as if it were an everyday commercial contract” (Little Salmon, at para. 10; see also D. Newman, “Contractual and Covenantal Conceptions of Modern Treaty Interpretation” (2011), 54 S.C.L.R. (2d) 475). Furthermore, while courts must “strive to respect [the] handiwork” of the parties to a modern treaty, this is always “subject to such constitutional limitations as the honour of the Crown” (Little Salmon, at para. 54).
[38] Canada in its memorandum notes, “‘breach of treaty’ is a phrase that is commonly used in more recent jurisprudence.” While the phrase “breach of treaty” was not in use when this action commenced in 1980, it was more widely used when the Plaintiffs amended their claim; however, they did not change the allegation of a breach of contract to a breach of treaty. In my view, this is not fatal to the Plaintiffs’ position, nor even material to the action as pleaded, because in this Court one need plead only the material facts, not the legal consequences of those facts.
[39] An illustration of this proposition may be found in Conohan v The Cooperators, 2002 FCA 60 [Conohan] at paragraphs 14 and 15, where the Federal Court of Appeal considered whether the failure to plead a defence was fatal when the defendant later tried to rely upon it. It found that it was not, provided the party opposite was not taken by surprise:
Moreover, there can be no serious suggestion that because it was not expressly pleaded or listed in the order of the Prothonotary, the appellants were taken by surprise and thereby prejudiced in their introduction of evidence or otherwise in the prosecution of their claims at trial.
Rule 174 requires a party to plead "a concise statement of the material facts on which the party relies", which is a fundamental principle of pleading. In my view, the facts touching on the Clause 16 defence are few and straightforward. The respondent sufficiently pleaded that because Gaudet had not paid anything to the appellant Conohan in respect of his liability arising out of the collision Gaudet was not, by reason of Clause 16, entitled to be paid anything under the policy. Even if it could be said that the respondent did not plead the "pay to be paid" requirement of Clause 16 but only the other defences listed in the Prothonotary's order, in my view this did not prevent the respondent from relying on that requirement. As Lord Denning M.R. explained in Vandervell's Trusts (No. 2), In re, [1974] Ch. 269 (C.A.), at pages 321-322:
It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit. [emphasis added]
[40] In my view, this reasoning applies when a plaintiff fails to plead a cause of action that it later wishes to rely upon. One must look at the material facts pleaded, not the terminology used.
[41] Prothonotary Tabib recently applied Conohan when considering a motion to strike. In Apotex Inc v Shire LLC, 2016 FC 1267 at paragraph 6, she comments:
The parties may, but are not required to raise points of law in their pleadings. Even if they do, neither the parties nor the Court are bound by the legal result or legal label pleaded. The party is free to argue and the Court is free to rule on any legal consequence supported by the facts pleaded (Conahan v Cooperators, 2002 FCA 60 at para 15). [emphasis added]
[42] To the same effect is a recent decision of the Federal Court of Appeal in Paradis Honey Ltd v Canada, 2015 FCA 89 [Paradis Honey], at paragraph 113:
A statement of claim must contain allegations of material facts sufficient to support a viable cause of action: Federal Courts Rules, S.O.R. / 98-106, Rule 174. Plaintiffs need not plead the particular legal label associated with a cause of action: Rule 175; see also Cahoon v. Franks, [1967] S.C.R. 455 at pages 458-459. Similarly, plaintiffs who choose to use a particular legal label are not struck out just because they chose the wrong label: Sivak v. Canada, 2012 FC 272 (CanLII), 406 F.T.R. 115 at paragraph 20; J2 Global Communications Inc. v. Protus IP Solutions Inc., 2008 FC 759 (CanLII), 330 F.T.R. 176 at paragraphs 33-36; Johnson & Johnson Inc. v. Boston Scientific Ltd., 2004 FC 1672 (CanLII), [2005] 4 F.C.R. 110 at paragraph 54. [emphasis added]
…
Sometimes the pleading gives rise to more than one cause of action. It all depends on the substance of the pleading, not the labels. As Lord Denning M.R. explained in In re Vandervell’s Trusts (No. 2), [1974] Ch. 269 at pages 321-22 (C.A.):
It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to what he has stated. He can present, in argument, any legal consequence of which the facts present.
[43] The Federal Court of Appeal in Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paragraph 16, explained that pleadings are to allow the other side to prepare its defence and prevent prejudice:
It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought. As the judge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.”
[44] In addition to the reference noted previously at paragraph 9 of the Amended Statement of Claim, the Blood Tribe says that it entered into Treaty 7 relying on Canada’s representations and promises. These representations and promises include those set out in Treaty 7 itself. They say that Canada breached these representations and promises, and in paragraph 36 provide “some particulars of the said breach or breaches.” These facts as pleaded, in my view, are sufficient to support an action for breach of treaty.
[45] Canada is not prejudiced by this cause of action being raised. It led evidence at trial and made submissions that Canada fulfilled all of its treaty obligations.
[46] Canada’s further submission on the failure to plead the breach of treaty is that it was taken by surprise by the Plaintiffs’ submission that no limitation period runs in an action for breach of treaty until section 35 of the Constitution Act, 1982, came into effect on April 17, 1982. The Plaintiffs’ submission will be analyzed when discussing Canada’s limitations defence.
[47] For present purposes, it is sufficient to note first that the Plaintiffs pleaded that provision in its Amended Statement of Claim, and Canada consented to that amendment. Second, Rule 175 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules], provides that a party may raise any point of law in a pleading, but it is not required. The bare pleading that “members of the Blood Tribe have Aboriginal and Treaty rights which are constitutionally protected by section 35 of the Constitution Act, 1982” might not alert Canada to the consequences now asserted by the Blood Tribe. However, Canada made no inquiries then as to why this amendment was necessary, nor did it apparently seek an explanation as to its impact on this action and Canada’s limitation defence before consenting to the amendment.
[48] Any prejudice relating to the intersection of its limitations defence with the claim that it cannot have application to a claim of breach of treaty prior to the Constitution Act, 1982, was cured when Canada was permitted to file sur-reply submissions.
[49] Aside from these considerations, where there is no prejudice to Canada, it is my view that a First Nation must be accorded some latitude and its pleadings not read so finely that legitimate complaints and grievances are dismissed by courts without adjudication. In part, this is because the field of Aboriginal litigation is relatively recent and is constantly evolving. Indeed, the Court’s own research has not found a pleading claiming a “breach of treaty” as a unique cause of action prior to the 1990s. An early example of a claim which appears to bring a breach of treaty claim using those words is Chippewas of Kettle & Stony Point v Canada (Attorney General), [1994] 4 CNLR 34, 17 OR (3d) 831 (Ont Gen Div). It involves a motion for a certificate of pending litigation, and the Court mentions the claims for money damages for “breach of fiduciary duty, negligence, breach of Treaty Rights and/or breach of trust.”
[50] For these reasons, I reject Canada’s submission that the alleged breach of treaty is not properly before the Court.
b. Raising a New Constitutional Question
[51] I turn next to Canada’s submission that the Blood Tribe has improperly raised in reply a new constitutional question without providing the Attorneys General with notice as required by the Federal Courts Act.
[52] The Blood Tribe, in my view, has not raised any new constitutional question in its written reply that would trigger the requirement in section 57 of the Federal Courts Act that it serve and file a Notice of Constitutional Question. The “new” submission it makes is that no limitation can run as against a cause of action for breach of treaty until after section 35 of the Constitution Act, 1982 came into force because the cause of action had not yet arisen. This submission does not raise the “constitutional validity, applicability or operability of an Act of Parliament.” Section 57 of the Federal Courts Act is not engaged.
c. Addressing the Constitutional Questions Only in Reply
[53] Canada objects to the Court considering the constitutional issues raised by the Blood Tribe because it made its submissions for the first time in reply.
[54] The Notice of Constitutional Question is required in order to put the Attorneys General on notice that the question stated is to be raised and to permit them an opportunity to put whatever evidence they see fit before the Court. Canada had that opportunity.
[55] Moreover, the question of whether the limitation defence pleaded by Canada only applies to a breach of treaty claim after the Constitution Act, 1982, because a breach of treaty was not an actionable claim prior to that date, is a question that arises in response to Canada’s limitation defence. I see nothing improper in the Blood Tribe waiting to respond to Canada’s limitation defence with its submission that these provisions do not apply to it in the case before the Court. In any event, as noted, Canada was permitted to file sur-reply submissions on the issue. The Court therefore has had the benefit of fulsome submissions from both parties on the issue.
C. Key Individuals
[56] As an aid to the reader, I have set out the names and a brief description of some of the key individuals involved in the making of Treaty 7 and the creation of the Blood Reserve. [6]
James Bird aka Jimmy Jock [Bird]: Bird was of “mixed blood” and was originally employed by the Hudson’s Bay Company as a fur-trader and interpreter. He lived among the Blackfoot tribes for many years and was considered proficient in their language. He was an interpreter at the Lame Bull Treaty in the US, and in 1877, he was an interpreter at Treaty 7.
Crowfoot aka Isapo-Muxika [Crowfoot]: Crowfoot was a Blackfoot Chief. He was born into the Blood Tribe but after his father died, his mother married a Blackfoot man, and he was raised in the Blackfoot Tribe. As a chief, he was among the first to welcome the North-West Mounted Police [NWMP] and their efforts to stem the whiskey trade. Crowfoot was the principal First Nation spokesperson at the making of Treaty 7.
Lief Crozier [Crozier]: Crozier was appointed as an officer of the NWMP in 1873. He was promoted and was a Superintendent of the NWMP by 1876. He was a witness to Treaty 7 in 1877.
Sir Cecil Edward Denny [Denny]: Denny was a member of the NWMP until 1881. He was present at Blackfoot Crossing and signed Treaty 7 as a witness and assisted in the initial Treaty annuity payments. He was involved in a scandal that obliged him to resign from the force in June of 1881, having been charged with having “criminal connection” with Victoria Robinson, the wife of Constable Percy Robinson (the same man involved in paying annuities to the Bloods). Edgar Dewdney appointed Denny Indian Agent in October 1881. His authority was throughout the Treaty 7 reserves.
Edgar Dewdney [Dewdney]: Dewdney was a surveyor in the early 1860s. In May 1879, he was appointed by Sir John A. Macdonald as Indian Commissioner of the North-West Territories. In December 1881, he succeeded David Laird as Lieutenant Governor (while also continuing as Indian Commissioner).
Elliott Torrance Galt [Galt]: Galt was the son of Alexander Tilloch Galt, one of the fathers of confederation. He was a businessman and politician. In 1879, he was made secretary and clerk to Dewdney, newly appointed Indian Commissioner of the North-West Territories. He later became Assistant Commissioner to Dewdney. He was said to have recognized the investment potential of southern Alberta, especially the coalfields.
David Laird [Laird]: Laird was Minister of the Interior and Superintendent General of Indian Affairs under Prime Minister Alexander Mackenzie from 1873 to 1876. He then served as the Lieutenant Governor of the North-West Territories from October 1876 to 1881, where he was responsible for Indian Affairs. In 1898, he was appointed Indian Commissioner for Manitoba and the North-West Territories by the Laurier government. Laird played a significant role in the negotiation of Treaties 4 (1874), Treaty 6 adhesions (1877, 1878), Treaty 7 (1877), and Treaty 8 (1899).
Jean L’Heureux [L’Heureux]: L’Heureux attended a seminary in Québec and studied for the priesthood but was expelled, allegedly when it became known that he was homosexual. He travelled west passing himself off as a Jesuit Priest, and joined with the Blackfoot. In 1876 on behalf of the Blackfoot tribes, he wrote to Canada seeking a treaty. He signed Treaty 7 as a witness.
Sir John Alexander Macdonald [Macdonald]: Macdonald was a prominent Canadian politician. He was Prime Minister from 1867 to 1873 and 1878 to 1891. He also was Minister of the Interior from 1878 to 1883 and Superintendent General of Indian Affairs from 1878 to 1887.
James Farquharson Macleod [Colonel Macleod]: Colonel Macleod accepted a commission as Superintendent and Inspector in the NWMP. Beginning in 1874, he travelled to Fort Macleod to suppress the whiskey trade. He was promoted to Commissioner of the NWMP in June 1876 by Prime Minister Mackenzie. He and Laird were appointed Commissioners to negotiate Treaty 7 in 1877. He resigned from the NWMP in 1880 and continued in a judicial role as a magistrate in the Bow River area.
Norman Thomas Macleod [Agent Macleod]: Agent Macleod was Colonel Macleod’s older brother and was Indian Agent from 1880 to 1881.
Alexander Morris [Morris]: Morris was a member of Parliament and cabinet minister in the first Macdonald government. In 1872, he served as the first chief justice of the Court of Queen’s Bench in Manitoba for a few months prior to being sworn in as Lieutenant Governor of Manitoba and the North-West Territories in December. He served in that role for five years.
William B. Pocklington [Pocklington]: Pocklington was a member of the NWMP from 1877 to 1880, and Indian Agent from 1884 to 1891.
Jerry Potts [Potts]: Potts was an interpreter. His mother was a member of the Blood Tribe. He was an interpreter when the NWMP and Macleod first met with Crowfoot to discuss the whiskey traders. He was present at the negotiations of Treaty 7. He was known to abuse alcohol throughout his life.
Red Crow aka Mékaisto, Mekasto, Mikasto [Red Crow]: Red Crow was a Chief of the Blood Tribe at the time of signing Treaty 7. Also signing Treaty 7 as a Blood Chief was Rainy Chief. When Rainy Chief died, Red Crow became the sole leader of the Blood Tribe. Hugh Dempsey writes of him in the Dictionary of Canadian Biography: “A warrior at heart, Red Crow had not accepted dependence upon the government and had encouraged farming, ranching, and education as means for his people to become self-sufficient. He instilled within the Bloods an independence and pride which made them subservient to no one, not even the white man.”
Lawrence Vankoughnet [Vankoughnet]: Vankoughnet was first employed by the Department of Indian Affairs as an Indian Agent and later was promoted to Deputy Superintendent General, Indian Branch, Department of the Interior, from 1874 to 1893.
II. THE EVIDENCE
[57] The parties entered more than 2,300 exhibits at trial. Most are letters, reports, orders in council, maps, and journal entries dating to the late 1800s. [7] These documents provide Canada’s account because representatives of the Crown wrote them. They detail dealings with the Blood Tribe and others. I have tried to keep in mind that in some instances the authors, when writing to their superiors, may have been drafting their reports in a light favourable to themselves. At the relevant time, the Blood Tribe had no written language and wrote no documents that tell their side of the story. The Blood Tribe relies on its oral history to provide its account.
A. Blood Tribe Oral History Evidence
[58] In Phase I, the Court heard from a number of members of the Blood Tribe: Wilton Goodstriker, Pete Standing Alone, David Stripped Wolf, Dennis First Rider, Andrew Black Water, Mary First Rider, Charlie Crow Chief, and Bruce Wolf Child.
[59] Canada at paragraphs 290 to 341 of its written submissions provides a general summary of the evidence each